Creating artwork and avoiding the needless expense of litigation

BLAW – CASE RUBRIC OR “LAYOUT”/FORMAT

FACTS: [Feel free to use the following background facts (as well as to add to or subtract from these facts) to accurately cue your reader in on the problem you are addressing]

The CEO of the Grif Group, Ltd., a professional consulting group, hired you to provide professional consulting services on behalf of the company. You are the lead consultant for the client, the Art of Justice Institute, LLC, (AOJI) who engages in the creation and sale of art forms designed to increase awareness in and around the law.

Your client, AOJI commissions artists to create legal artwork. The AOJI has entered into agreements with various artists under the so-called “work-made-for-hire” legal doctrine wherein the artists make express assignments of all copyrights to the AOJI. In other words, the AOJI made certain the independent contractors-artists signed agreements. The agreements specify the artist’s intentions relative to assigning to the AOJI any rights they may have in their works, including any copyrights. To date, the AOJI Artists have created several pieces of artwork including paintings. For instance, an AOJI Artist created artwork that depicts Landmark Supreme Court cases, for instance paintings depicting People v. Flowers and Dobbs v. Jackson Women’s Health Organization.

To date AOJI has not offered any of its artwork for sale. Rather the AOJI has merely used the

artwork for purposes of teaching (including multiple copies for classroom use), scholarship, and

research. In addition, AOJI has held several Art of Justice Exhibits giving smaller pieces of the

artwork to students, staff, and the faculty at various colleges and universities to create a level of

awareness around legal educational programs. The AOJI is interested to know whether it can sell two pieces of artwork depicting People v. Flowers and Dobbs v. Jackson Women’s

Health Organization without violating any laws or subjecting itself to legal causes of action. For

instance, could the AOJI being sued for a cause of action of invasion of privacy-misappropriation or being sued in a cause of action for copyright infringement.

I SSUE(S): [address at least three (3) of the five (5) issues set forth below]

1. Whether Thomas Dobbs, State Health Officer of the Mississippi Department of Health, could file a cause of action against the AOJI for invasion of privacy because of the AOJI using his name or likeness in the painting depicting the landmark case Dobbs v. Jackson Women’s Health Organization.

2. Whether either Doug Evans, as the prosecutor, or Curtis Flowers as the defendant in the Flowers case could file a cause of action against the AOJI for invasion of privacy because of the AOJI using their names or likenesses in the painting depicting the landmark case Flowers v. Mississippi.

3. Whether the AOJI painting that depicts the Landmark case of Flowers v. Mississippi copies an idea or an expression from Justice Brett Kavanaugh’s majority opinion issued in the Flowers case.

4. Whether the AOJI painting that depicts the Landmark case of Dobbs v. Jackson Women’s Health Organization copies an idea or an expression from Justice Samuel Alito’s majority opinion issued in the Dobbs case.

5. Whether and to what extent an artist can use the work of others, work such as a Supreme Court Justice’s written opinion, or work such as a litigant’s interest resulting from prosecuting or defending a case, to create a work of art such as painting which depicts a legal case.

RULE(S):

As a starting point for you research you can use the following sources of law:

Secondary source: the restatement of torts defines one form of invasion of privacy as appropriating another person’s identity which amounts to using that other person’s name, likeness, or image without their permission for commercial purposes. The Restatement 2d of Torts, § 652C provides that “[o]ne who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”

Case law: regarding appropriation of identity – for the most part with some exceptions an individual’s right of privacy normally includes the right to the exclusive use of his or her identity, see Burck v. Mars, Inc. 571 F. Supp. 2d 446 (S.D.N.Y. 2008).

Case law: an author gains exclusive rights in his or her work immediately upon the work’s creation, including rights of reproduction, distribution, and display, see 17 USC §106. The case of Eldred v. Ashcroft, 537 U.S. 186, 195 (2003) stands for the proposition that federal copyright protection begins to run from the work’s creation. However, regarding filing a cause of action for copyright infringement – no civil infringement action can be brought until registration of the copyright claim has been made at the U.S. Copyright Office, see 17 U.S.C. 411(a).

Case law: In Kepner-Tregoe, Inc. v. Carabio, 1979 U.S. Dist. LEXIS 12910, the court found that defendant did not infringe plaintiff's training programs; decisions concerning whether an imitator went beyond copying the "'idea" and borrowed its "expression" must be made on an ad hoc basis.

ANALYSIS/APPLICATION:

To get started, please know you can use the following cases:

In Burck v. Mars, Inc. 571 F. Supp. 2d 446 (S.D.N.Y. 2008), Plaintiff Robert Burck was a "street entertainer" performing in New York City's Times Square as The Naked Cowboy, wearing only a white cowboy hat, cowboy boots, and underpants, and carrying a guitar strategically placed to give the illusion of nudity. He has registered trademarks to "The Naked Cowboy" name and likeness. Beginning in April 2007, defendants Mars, Incorporated began running an animated cartoon advertisement on two oversized video billboards in Times Square, featuring a blue M&M dressed "exactly like The Naked Cowboy, wearing only a white cowboy hat, cowboy boots, and underpants, and carrying a guitar. Plaintiff sued claiming he was entitled to both compensatory and punitive damages. Plaintiff alleged that defendant Mars violated his "right to publicity" under New York law and infringed his trademarks under federal law by using his likeness, persona, and image for commercial purposes without his written permission and by falsely suggesting that he has endorsed M&M candy. The court held that plaintiff’s right to privacy claim failed. Merely evoking certain aspects of another's character did not violate N.Y. Civ. Rights Law § 50 (1992) and § 51 (Supp. 2008). The statutory right to privacy did not extend to fictitious characters adopted or created. However, the plaintiff’s trademark infringement claim did survive the motion for summary judgment because parody was a question of fact for the jury. Although some consumers might view the M&M cowboy character as a parody of a famous New York character, others might perceive the character's use as constituting an endorsement of the product by The Naked Cowboy.

In Kepner-Tregoe, Inc. v. Carabio, 203 U.S.P.Q. 124 (U.S. Dist. E.D. Mich.1979), the Plaintiff engaged in marketing and teaching management-training programs. Defendants, a former employee of plaintiff corporation, and his corporation, also marketed and taught management training programs and utilized teaching materials like plaintiff's material. The Copyright Act of 1909, 17 U.S.C.S. § 102(b), does not protect ideas, yet expressions; therefore, entire publication was not necessarily protected. The court held that one author was permitted to utilize the labor of another in developing his own expressions. This was partly based upon the concept that the public had an interest in the advancement of art, science, and industry. The court found that the defendant did not infringe plaintiff's training programs. The court concluded that when addressing the issue of whether an imitator goes beyond copying the "'idea" and borrows its "expression" must be made on a case-by-case basis.

CONCLUSION:

Focus on a solution to the problem, namely your focus will be on whether the AOJI can legally sell paintings depicting legal cases decided in courtrooms across the United States without being required to defend against a cause of action for misappropriation or copyright infringement.

It is likely, the AOJI’s act of selling the painting(s) will result in legal liability for the tort of invasion of privacy ….

It is likely, the AOJI’s act of selling the painting(s) will result in legal liability for copyright infringement….

Thinking about the invasion of privacy arguments the litigants may raise, and the copyright issues the Justices may raise, what are some possible solutions you would recommend for the AOJI.

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