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Checklist and Commentary on Defenses for Right of Publicity Claims
This article is Part Two of a two-part series. Part One appeared in the April issue of Entertainment Law & Finance. Part Two starts with a continuation of the author's discussion of First Amendment defenses to right of publicity claims.
However, there are some difficulties with the “predominant purpose” test. First, assuming the work does make an expressive comment about the plaintiff, does it permit use of a private person's persona, such as girls caught flashing in the Girls Gone Wild videos? And what if the “expressive comment” is the image itself, such as a picture book of celebrities? How is the finder of fact supposed to distinguish a “predominant purpose” of making an expressive comment from that of making a buck, when the two go hand in hand?
In any event, there is a three-way split of authority on whether expressive works are protected by the First Amendment. An interesting example is the plaintiff who flashed her breasts in public and found herself prominently featured in one of the infamous Girls Gone Wild videos. A Florida court held that the video was entitled to carte blanche protection as an expressive work. Lane v. MRA Holdings LLC, 242 F. Supp.2d 1205 (M.D. Fla. 2002). (But see, Topheavy Studios Inc. v. Jane Doe, 03-05-00022-CV (Texas Ct. App. 2005), holding to the contrary on identical facts.)
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Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
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