Cameo Clips

Right Of Publicity/Plaintiff's Death

A right-of-publicity claim filed under New York law by actor Jerry Orbach before his death in 2004 can proceed, the New York County Supreme Court decided. Orbach v. Hilton Hotels Corp., N.Y.L.J., Aug. 1, pg. 18. Orbach had agreed to narrate a documentary that he claimed he thought would be used only for the 100th anniversary of the Waldorf-Astoria hotel. Orbach's suit alleged “that [Hilton Hotels] has illegally used and displayed the video far beyond the terms of the original agreement thereby causing harm to him.” Hilton Hotels argued that Orbach's right-of-publicity claim under New York Civil Rights Law Sec. 51, the state's right-of-privacy statute, ended when he died. New York courts have held that Sec. 51 isn't a descendible right. But the trial court noted that the issue in the Orbach case was answered in Groucho Marx Productions Inc. v. Playboy Enterprises Inc., 1979 U.S. Dist. LEXIS 13900 (S.D.N.Y. 1979), which “held that if an individual files a Sec. 51 action and then dies, his legal representative may be substituted. Judge [Morris] Lasker [of the Manhattan federal district court] distinguished cases in which the action was brought after the death of the plaintiff as follows:

'Those cases held merely that it was no violation of Secs. 50 and 51 to use the picture of a person already dead at the time of the initial use of the picture, a proposition with which we agree. However, in this case, the use (and the complaint as to the use) of the pictorial material in question preceded the death of Groucho Marx [plaintiff], and nothing in the statute or the cases cited precludes his legal representatives from continuing to press the claim he asserted before he died.'”

The New York County Supreme Court concluded: “It is evident that, as Judge Lasker persuasively concluded, Orbach's Executrix is entitled to continue this action.”

Copyright Infringement/Laches Defense

The U.S. Court of Appeals for the Ninth Circuit ruled that a copyright infringement suit by the daughter of jazz artist Kid Ory over Country Joe McDonald's 1960s anti-Vietnam-War-song “Fixin' to Die Rag” was barred by laches. Ory v. McDonald, 03-56586. The elements of a laches defense are that a plaintiff's unreasonable delay in filing suit prejudiced the defendant. Babette Ory filed suit in 2001, claiming that McDonald's song infringed on her father's composition “Muskrat Ramble.” The district court granted summary judgment for McDonald. Affirming in an unpublished opinion, the appeals court first decided that the failure to file suit for so many years constituted delay under the laches test. The court also rejected the plaintiff's claim that a 1999 recording by McDonald of “Fixin' ” amounted to a new infringement. According to the court: “ Ory's admission that 'every version [of Fixin'] contains the portion that infringes' demonstrates that there is no new infringing activity. Moreover, her mere assertion that the 1999 recording is a new instance of infringement and bare allegations that the 1999 recording is 'qualitatively' different are not enough to defeat summary judgment.”

The appeals court then found the delay unreasonable because, even though Babette Ory didn't gain ownership of her father's song until 2001, “Ory stands in the shoes of her predecessor; she cannot claim the right to sue where that right would have been unavailable to her predecessor/assignor.” The delay in filing suit prejudiced McDonald, plus “McDonald's uncontradicted testimony that he invested time and money in Fixin' is sufficient to establish expectation-based prejudice,” the appeals court concluded.

The appeals court also upheld an award of attorney fees for McDonald by agreeing with the district court that McDonald “'fully prevailed' in his laches defense, that the lateness of Ory's claim was unreasonable, and that the suit serves none of the purposes of the Copyright Act. We see no abuse of discretion.”

Upcoming Events:

American Bar Association Annual Forum on the Entertainment and Sports Industries, New York, Oct. 7-8. For further information: 312-988-6210; www.abanet.org/cle. … Texas Bar 15th Annual Entertainment Law Institute, Austin, Oct. 21-22. For further information: 800-204-2222, ext. 1574; http://www.texasbarcle.com/.

Right Of Publicity/Plaintiff's Death

A right-of-publicity claim filed under New York law by actor Jerry Orbach before his death in 2004 can proceed, the New York County Supreme Court decided. Orbach v. Hilton Hotels Corp., N.Y.L.J., Aug. 1, pg. 18. Orbach had agreed to narrate a documentary that he claimed he thought would be used only for the 100th anniversary of the Waldorf-Astoria hotel. Orbach's suit alleged “that [Hilton Hotels] has illegally used and displayed the video far beyond the terms of the original agreement thereby causing harm to him.” Hilton Hotels argued that Orbach's right-of-publicity claim under New York Civil Rights Law Sec. 51, the state's right-of-privacy statute, ended when he died. New York courts have held that Sec. 51 isn't a descendible right. But the trial court noted that the issue in the Orbach case was answered in Groucho Marx Productions Inc. v. Playboy Enterprises Inc., 1979 U.S. Dist. LEXIS 13900 (S.D.N.Y. 1979), which “held that if an individual files a Sec. 51 action and then dies, his legal representative may be substituted. Judge [Morris] Lasker [of the Manhattan federal district court] distinguished cases in which the action was brought after the death of the plaintiff as follows:

'Those cases held merely that it was no violation of Secs. 50 and 51 to use the picture of a person already dead at the time of the initial use of the picture, a proposition with which we agree. However, in this case, the use (and the complaint as to the use) of the pictorial material in question preceded the death of Groucho Marx [plaintiff], and nothing in the statute or the cases cited precludes his legal representatives from continuing to press the claim he asserted before he died.'”

The New York County Supreme Court concluded: “It is evident that, as Judge Lasker persuasively concluded, Orbach's Executrix is entitled to continue this action.”

Copyright Infringement/Laches Defense

The U.S. Court of Appeals for the Ninth Circuit ruled that a copyright infringement suit by the daughter of jazz artist Kid Ory over Country Joe McDonald's 1960s anti-Vietnam-War-song “Fixin' to Die Rag” was barred by laches. Ory v. McDonald, 03-56586. The elements of a laches defense are that a plaintiff's unreasonable delay in filing suit prejudiced the defendant. Babette Ory filed suit in 2001, claiming that McDonald's song infringed on her father's composition “Muskrat Ramble.” The district court granted summary judgment for McDonald. Affirming in an unpublished opinion, the appeals court first decided that the failure to file suit for so many years constituted delay under the laches test. The court also rejected the plaintiff's claim that a 1999 recording by McDonald of “Fixin' ” amounted to a new infringement. According to the court: “ Ory's admission that 'every version [of Fixin'] contains the portion that infringes' demonstrates that there is no new infringing activity. Moreover, her mere assertion that the 1999 recording is a new instance of infringement and bare allegations that the 1999 recording is 'qualitatively' different are not enough to defeat summary judgment.”

The appeals court then found the delay unreasonable because, even though Babette Ory didn't gain ownership of her father's song until 2001, “Ory stands in the shoes of her predecessor; she cannot claim the right to sue where that right would have been unavailable to her predecessor/assignor.” The delay in filing suit prejudiced McDonald, plus “McDonald's uncontradicted testimony that he invested time and money in Fixin' is sufficient to establish expectation-based prejudice,” the appeals court concluded.

The appeals court also upheld an award of attorney fees for McDonald by agreeing with the district court that McDonald “'fully prevailed' in his laches defense, that the lateness of Ory's claim was unreasonable, and that the suit serves none of the purposes of the Copyright Act. We see no abuse of discretion.”

Upcoming Events:

American Bar Association Annual Forum on the Entertainment and Sports Industries, New York, Oct. 7-8. For further information: 312-988-6210; www.abanet.org/cle. … Texas Bar 15th Annual Entertainment Law Institute, Austin, Oct. 21-22. For further information: 800-204-2222, ext. 1574; http://www.texasbarcle.com/.