Cameo Clips

Rule 45 of the Federal Rules of Civil Procedure permits a court to quash or modify a subpoena that “requires disclosure of privileged or other protected matter, if no exception or waiver applies.” In the Second Circuit, courts use a five-factor test to determine whether to quash a subpoena that seeks an ISP user's identity. These facts are: whether the plaintiff has made a prima facie claim of “actionable harm”; how specific the discovery request is; whether there are alternate ways to obtain the information subject to the subpoena; whether the information moves the plaintiff's claim forward; and the file-sharer's privacy expectation.

Federal magistrate James L. Cott found in part: “Doe No. 9's general interest in avoiding suit has little bearing on whether Wiley has stated a specific request for relevant and otherwise discoverable information, which it has done.”

Right of Publicity/Descendibility Limit

The U.S. District Court for the Central District of California decided that New Jersey courts would limit the descendibility of the right of publicity under New Jersey common law to 50 years after an individual dies. The Hebrew University of Jerusalem (HUJ) v. General Motors LLC, CV10-03790 (C.D.Calif. 2012). In 2010, the purported assignee of Albert Einstein's right of publicity filed suit over General Motors' use of Einstein's image in a People magazine advertisement for a Terrain vehicle. Einstein resided in New Jersey when he died in 1955.

HUJ argued that the term of Einstein's post-mortem right of publicity should be indefinite or at least for 70 years, as is the current post-mortem term for federal copyrights. In 2007 and 2008, the New Jersey legislature considered, but didn't pass, legislative proposals for a statutory right of publicity, descendible for 70 years.

But California Central District Judge A. Howard Matz emphasized: “Absent a legislative directive to the contrary, to extend the right of publicity beyond a half century would be inconsistent with the Court's responsibility to balance all of the interests that are at stake.” (Apparently, none of the five states in which courts have embraced descendibility in their common law right of publicity have set a specific duration limit. These states are Connecticut, Georgia, Michigan, South Carolina and Utah.)

For one thing, Judge Matz believed: “The obviously humorous ad for the 2010 Terrain having been published 55 years or more after Einstein's death, it is unlikely that any viewer of it could reasonably infer that Einstein or whoever succeeded to any right of publicity that Einstein may have had was endorsing the GMC Terrain.”

Matz added: “A maximum duration of 50 years appropriately reflects the balance between meaningful enforcement of the right of publicity after a famous individual's death and the public's interest in free expression. It aligns with the majority of current state statutes limiting the right's postmortem duration.”

Judge Matz concluded that Einstein's “persona has become thoroughly ingrained in our cultural heritage. Now, nearly 60 years after his death, that persona should be freely available to those who seek to appropriate it as part of their own expression, even in tasteless ads.”

File-Sharing of Books

A magistrate for the U.S. District Court for the Southern District of New York refused to quash a subpoena issued to a book publisher seeking the identity of an alleged unauthorized file-sharer. John Wiley & Sons Inc. v. John Doe Nos. 1-30, 12 Civ. 3782. (S.D.N.Y. 2012).

Wiley alleged that seven of its books were being illegally copied and distributed via peer-to-peer file-sharing over BitTorrent. The book publisher proceeded ex parte to obtain subpoenas for identifying the individuals associated with the file-sharing ISP accounts. Doe No. 9 moved to quash the subpoena aimed at her by stating “I have never utilized BitTorrent to download” Wiley's content.

Rule 45 of the Federal Rules of Civil Procedure permits a court to quash or modify a subpoena that “requires disclosure of privileged or other protected matter, if no exception or waiver applies.” In the Second Circuit, courts use a five-factor test to determine whether to quash a subpoena that seeks an ISP user's identity. These facts are: whether the plaintiff has made a prima facie claim of “actionable harm”; how specific the discovery request is; whether there are alternate ways to obtain the information subject to the subpoena; whether the information moves the plaintiff's claim forward; and the file-sharer's privacy expectation.

Federal magistrate James L. Cott found in part: “Doe No. 9's general interest in avoiding suit has little bearing on whether Wiley has stated a specific request for relevant and otherwise discoverable information, which it has done.”

Right of Publicity/Descendibility Limit

The U.S. District Court for the Central District of California decided that New Jersey courts would limit the descendibility of the right of publicity under New Jersey common law to 50 years after an individual dies. The Hebrew University of Jerusalem (HUJ) v. General Motors LLC, CV10-03790 (C.D.Calif. 2012). In 2010, the purported assignee of Albert Einstein's right of publicity filed suit over General Motors' use of Einstein's image in a People magazine advertisement for a Terrain vehicle. Einstein resided in New Jersey when he died in 1955.

HUJ argued that the term of Einstein's post-mortem right of publicity should be indefinite or at least for 70 years, as is the current post-mortem term for federal copyrights. In 2007 and 2008, the New Jersey legislature considered, but didn't pass, legislative proposals for a statutory right of publicity, descendible for 70 years.

But California Central District Judge A. Howard Matz emphasized: “Absent a legislative directive to the contrary, to extend the right of publicity beyond a half century would be inconsistent with the Court's responsibility to balance all of the interests that are at stake.” (Apparently, none of the five states in which courts have embraced descendibility in their common law right of publicity have set a specific duration limit. These states are Connecticut, Georgia, Michigan, South Carolina and Utah.)

For one thing, Judge Matz believed: “The obviously humorous ad for the 2010 Terrain having been published 55 years or more after Einstein's death, it is unlikely that any viewer of it could reasonably infer that Einstein or whoever succeeded to any right of publicity that Einstein may have had was endorsing the GMC Terrain.”

Matz added: “A maximum duration of 50 years appropriately reflects the balance between meaningful enforcement of the right of publicity after a famous individual's death and the public's interest in free expression. It aligns with the majority of current state statutes limiting the right's postmortem duration.”

Judge Matz concluded that Einstein's “persona has become thoroughly ingrained in our cultural heritage. Now, nearly 60 years after his death, that persona should be freely available to those who seek to appropriate it as part of their own expression, even in tasteless ads.”