Hulk Hogan Brings Questionable Right of Publicity Suit

June 2, 2010

Is Boulder a doppelgänger for Hogan?

Hulk Hogan a/k/a Terry Bollea thinks that a character in a Cocoa Pebbles commercial (shown below) is too similar to him — and that it misappropriates his image or likeness for a commercial purpose. If that is the case, it is a no-no under Fla. Stat. § 540.08, which protects Floridians from unlawful commercial appropriation of their name or likeness.

In Hulk’s corner, the character in the commercial has long blonde hair, a mustache, and is called either “Hulk Boulder” or “Bulk Boulder.” I can’t really tell. In Post’s corner, it seems that the wrestler in the ad has a lot less forhead, a very different mustache, no headband, no Oakleys, and doesn’t seem to use the Hulkster’s gravely voice.

This suit seems like a stretch to me. (complaint here)

H/T: Nadia

Ninth Circuit denies 1st Amendment protections to brothel advertisements

March 17, 2010

By J. DeVoy

Last week, the Ninth Circuit ruled in Coyote Publishing Inc. v. Nevada that Nevada’s restrictions on brothel advertising are lawful, holding that the state has an interest in regulating commoditized sex.  This decision overturned the U.S. District Court of Nevada’s decision, which held that such regulations were unconstitutionally overreached pure commercial speech, and that the state had no compelling interest to support the regulations.

The opinion, available here, found that Nevada’s regulations addressed only pure commercial speech.  Consequently, the court applied the intermediate scrutiny test enunciated in Central Hudson Gas & Electric Corporation v. Public Service Commission, which provides:

At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. 

Applying this standard, the court found that Nevada’s regulation related to the commodification of sex, and that the prohibition of advertisements served to fulfill that goal while keeping the act of prostitution legal.  Indeed, the advertising of prostitution is illegal in only those counties where prostitution itself is illegal, which the court found to be sufficiently restrained in fulfilling the state’s interest.  The Ninth Circuit further found that Nevada’s restrictions on advertising limited the demand for commercial sex, thus curtailing its commoditization.  In light of Coyote Publishing’s facial attack on Nevada’s statute, and its reasonable fit in advancing its stated goals, the appeals court had little choice within precedent but to uphold the law.

Arguably, the county-by-county prohibition of advertising is overbroad in its application.  However, precedent does not require the statute to embrace only the barest means in effecting its ends to be constitutional — it needs only to be reasonable in doing so.

Super Bowl to air “controversial” pro-life ad – care?

January 27, 2010

By J. DeVoy

The big story in my own little slice of hell law school yesterday — other than some ill-planned “joke” by tasteless imbeciles to bring Jersey Shore cast members to commencement — was CBS’s tentative decision to run a pro-life commercial during the Super Bowl.  The ad, sponsored by openly Christian group Focus on the Family, features Heisman Trophy-winner Timothy Tebow and his parents, discussing their decision not to abort the child who became the most dominant quarterback in the SEC. (Source.)

But, enter the censorshipistas who think this message undermines abortion rights.

The Women’s Media Center and over 30 other liberal and women’s advocacy groups sent a letter to CBS, the TV network to air the Super Bowl on Feb. 7, saying: “… we urge you to immediately cancel this ad and refuse any other advertisement promoting Focus on the Family’s agenda.”

“We are calling on CBS to stick to their policy of not airing controversial advocacy ads … and this is clearly a controversial ad,” Jehmu Greene, the president of the Women’s Media Center, told Reuters.

How about no?  Instead of offering a rebuttal message or rationale for how this personal vignette, the contents of which are yet unknown, harms abortion rights, they immediately reach for the bottomless slopbucket of shame.

If I were at the helm of CBS, my response would be exactly one finger long.  One extended, defiant finger.  Though not bound by law to do anything, CBS could heed the tenor of public debate shown in Citizens United, namely that money talks, no matter whose it is.  And what kind of mush-minds are going to alter their world views based on a 30-second spot featuring the parents of a college athlete?

If people want to counter this message, they shouldn’t stamp their feet and wail like toddlers, but show how much support they have by raising the 2.6-3.2 million dollars necessary to run a counter ad.  For how much the pro-choice elite like to trumpet their material success and superior intellects, surely coming up with that sum of money across 30 groups would be a trifling matter.  The notion that speech should be fought with speech isn’t suspended merely because it carries a price tag.

It’s doubtful that pro-choice advocates think the act of abortion is a trivial matter.  Sure, they’re scientifically accurate that a fetus is a clump of cells, and I admire the hardcore proponents’ desire to argue ad nauseam about when life truly begins in how-many-angels-dance-on-the-head-of-a-pin fashion, but there seems to be consensus that abortion is a serious choice with drastic physical and emotional implications.  Even then, not all pro-choicers are pro-abortion, recognizing the seriousness of the procedure and wanting to retain only the right for women to make the choice on their own — exactly what the term denotes. (Curiously, none of them support the right for men to make a similar decision and unilaterally truncate their economic liability for unwanted children.)  Finally, only the most deluded of dumb shits think that Roe v. Wade will be overturned wholesale or even substantially; abortion is a reality we all live with, and those who seek to end it should consider the burden its cessation would place on our existing social welfare and criminal justice systems.

Mattel finally learns how to “chill”

October 30, 2009

by Jason Fischer

One of the chores inherent in the practice of law is that one has to read a lot of really REALLY dry court opinions. It’s always nice when you find judges out there who recognize this, and make some effort to keep it interesting. One of my favorites from law school has always been Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002). Well, this week saw an interesting footnote added to that opinion.

The Back Story

Most will probably remember that there was an annoying pop song, which was recorded back in the 90’s, called “Barbie Girl.” The group Aqua‘s single claim to fame was a huge success, despite being about as appealing to listen to as nails on a chalkboard — don’t let the number of stars assigned to this YouTube clip fool you.

If anything, I have to admit that I find the song amusing, and unlike 2 Live Crew’s “Pretty Woman,” I can believe that Aqua actually created the song to poke fun at the materialistic nature of Mattel’s Barbie franchise, instead of coming up with that justification after a lawsuit has been filed. True to form in those days, Mattel was not amused with Aqua’s parody, and decided to do what it always did back then… file an infringement lawsuit. While the case was pending, a Mattel spokesperson went on record, criticizing the defendants for not respecting their intellectual property rights, which of course spurred a defamation counterclaim.

The trial court made short work of both sides’ allegations, dismissing all with a summary judgment. The court determined that the Aqua song incorporated Mattel’s trademark as a means of identifying Mattel, not to unfairly compete with the toy company. That’s fair use.

Everyone appeals, hilarity ensues

Hon. Alex Kozinski (who is probably better known for more recent events) sets the tone for his now-famous opinion in the first line: “If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.” From there, he explores a brief history of the Barbie doll’s origins as an adult toy, modeled after a German hooker — something I’m sure that Mattel would rather not have reported on. Moving on to an expert legal analysis of the balance between the First Amendment and intellectual property rights, Kozinski concludes by boiling down the defamation claim as unsustainable:

MCA filed a counterclaim for defamation based on the Mattel representative’s use of the words “bank robber,” “heist,” “crime” and “theft.” But all of these are variants of the invective most often hurled at accused infringers, namely “piracy.” No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo. In context, all these terms are nonactionable “rhetorical hyperbole,” Gilbrook v. City of Westminster, 177 F.3d 839, 863 (9th Cir. 1999). The parties are advised to chill.

Mattel slunk away, licking the wounds of its latest intellectual property litigation defeat. For the next several years, it appeared as if they had not learned their lesson (see, e.g., here, here, here, and here). However, yesterday morning, the doll maker launched an ad campaign that demonstrates that they may have finally hired a decent attorney who gives better advice grown up. (source)

New commercial with altered lyrics

This story was originally published on

Clearwater Bait Shop Wins Round One

April 13, 2009

Posting the First Amendment is a code violation in some parts of this here wang.

Posting the First Amendment is a code violation in some parts of this here wang.

A Clearwater, Flori-duh bait shop has won its first round in a First Amendment fight over a mural on its wall.

U.S. District Judge James D. Whittemore issued an injunction forbidding Clearwater from levying any more fines on the Complete Angler for its mural while the case is in litigation. The city also can’t fine the shop at 705 N Fort Harrison Ave. for covering its mural with a banner displaying the First Amendment.

The tackle shop’s owners, Herb and Lori Quintero, say a mural of game fish on an outside wall of their store is art. The city says it’s an unauthorized sign and a code violation. (source)

Affiliate Liability

February 18, 2009

Eric Goldman gives us an overview of how affiliates can get their programs in trouble.

Getting Under-30s Interested in the First Amendment

January 30, 2009

by Jason Fischer

It’s a daunting task, but one District Judge in Rhode Island thinks he has found a way to catch the interest of the under-30, computer-oriented generation: Link to YouTube videos, which play music that is ironically related to the facts of a case. (source)

“The novelty of citations to YouTube and the idea that you could access music as you plod through the opinion hopefully makes a kind of dry subject a little more fun and interesting,” [U.S. District Judge William E. Smith] wrote in an e-mail. “It seems to me that judges should look for ways to get people interested in important subjects like the First Amendment, to get them talking about it. Hopefully this will accomplish that goal in a small way.”

We here at the Legal Satyricon agree that this is a good idea, and offer the following for your enjoyment while reading this post.