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Indiana Intellectual Property Blog

~ Trademark and Copyright Law Updates in Indiana

Indiana Intellectual Property Blog

Category Archives: Right of Publicity

Social Media Law – Presentation Video

18 Thursday Aug 2011

Posted by Kenan Farrell in Authors, Bloggers, Copyright, Defamation, Intellectual Property, Right of Publicity, Social Media, Tech Developments, Trademark

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Richmond Social Media Group, Whitewater Community Television

Here’s the video from my July 8, 2011 presentation to the Richmond Social Media Group on social media law:

PCCU Presents Richmond Social July 8, 2011 from Richmond Social on Vimeo.

Thanks to PCCU and Whitewater Community Television for your help!

Indiana lawmakers to consider upskirt ban

09 Sunday Jan 2011

Posted by Kenan Farrell in Entertainment Law, Indiana, Legislation, Right of Publicity, Tech Developments

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Invasion of Privacy by Photography

In dealing with the apparent scourge of upskirt photography, a key Indiana Senate committee will consider a proposed bill Tuesday by State Sen. Tom Wyss (R-Fort Wayne) that would make it illegal to take or distribute pictures or video of a person’s private areas.

The bill would establish the new crime of “Invasion of Privacy by Photography,” a Class A misdemeanor. A crime is committed if a person, with the intent to: (1) gratify the person’s sexual desires; (2) humiliate or embarrass the victim; or (3) publish, transmit, or disseminate the photograph; surreptitiously photographs the private area of an individual under circumstances in which a reasonable person would believe that the individual’s private area would not be visible to the public.

The penalty is increased to a Class D felony if the person knowingly or intentionally publishes, transmits, or otherwise disseminates the photograph.

Full text of the proposed bill:

ICĀ 35-45-4-6 IS ADDED TO THE INDIANA CODE

Sec. 6. (a) As used in this section, “private area” means the naked or undergarment clad genitals, pubic area, or buttocks of an individual.
(b) A person who, without the consent of the individual:
(1) knowingly or intentionally:
(A) surreptitiously photographs, video records, or captures a digital image of the private area of an individual by means of camera, a video camera, or any other type of video recording device, whether or not the photograph, video, or image is permanently saved; or
(B) performs an act described in clause (A) under circumstances in which a reasonable person would believe that the individual’s private area would not be visible to the public; and
(2) performs the act described in subdivision (1) with the intent to:
(A) gratify the sexual desires of the person;
(B) humiliate or embarrass the individual; or
(C) publish, transmit, or otherwise disseminate the photograph, video, or digital image; commits invasion of privacy by photography, a Class A misdemeanor. However, the offense is a Class D felony if the person knowingly or intentionally publishes the photograph, video, or digital image or otherwise knowingly or intentionally transmits or disseminates the photograph, video, or digital image to another person.

Members of the Senate Committee on Corrections, Criminal and Civil Matters will review the bill on Tuesday, January 11 at 9 a.m. in Room 130 of the Statehouse. The law would become effective on July 1, 2011.

My initial thoughts: I didn’t realize that upskirt photography was such a big deal but it shouldn’t come as a surprise given that everyone has a small camera or cameraphone in their hands nowadays and fashion often involves half-fallen-off clothing. I expect this bill, like many others, is actually just one piece of a much larger puzzle. An immediate concern with the bill is its potential for arbitrary enforcement. First, in what places would a individual’s private area be considered reasonably visible to the public? Las Vegas? The beach? A half-marathon? If a person has their private area willingly exposed (I’m looking at you, Indy 500 crowd), is it now illegal to take photos or do they give implied consent to the entire crowd? If you take a photo of a person and accidentally catch a crotch shot, are you now a criminal?

A person who, without consent, knowingly surreptitiously photographs the private area of an individual by means of a camera with the intent to publish the photograph. By my reading, this could include almost any photo you might take of someone running the Mini to post on Facebook or a blog if the photo shows their “private area.” If that’s the case, the language of this bill definitely needs to be tightened up to avoid potentially draconian enforcement.

Presumably, the state government and businesses would also have to abide by this law, in which case it could serve as a strong shield against the ever-encroaching security/surveillance industry. Just to be certain, it would be nice if this bill specifically included not only “persons” but also organizations and surveillance cameras.

Better yet, here’s a possible “real world” solution…Get over the outdated concept of “private areas.” There are now over 6 billion people on the planet. About half have a penis and about half have a vagina. Acknowledge this biological fact and move on…really, kids age 4 understand this.

I’ll keep you updated as the bill proceeds.

Indiana Right of Publicity Litigation Update – Patricia Day v. Wonderama Toys et al

28 Tuesday Dec 2010

Posted by Kenan Farrell in Indiana, Intellectual Property, Litigation, Right of Publicity, Southern District of Indiana, Trademark

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False Association and False Endorsement, Infringement of Right of Publicity, Litigation Update, Mark J. Dinsmore, Richard L. Young

Patricia Day v. Wonderama Toys et al

Plaintiff Patricia Day is the lead singer of the Danish rockabilly band HorrorPops. Plaintiff claims a distinctive on-stage appearance, which combines:

(1) black hair meticulously done in 50’s pin-up fashion; (2) her retro hairstyle juxtaposed against conspicuous and heavily-applied black eye shadow and liner and deep red lipstick; (3) her form fitting ’50s-style pencil skirts that go just past the knees; (4) her full-color “sleeve tattoos” on both upper arms; and, most importantly (5) her distinctive instrumental extension of her personality: her giant tattooed upright bass.

Mattel allegedly created a Barbie doll using the likeness of Ms. Day without obtaining a license. In addition to being an unauthorized use of her likeness, the Barbie doll has caused Ms. Day particular anguish due to her feminist leanings and the confusion caused among peers and fans.

Why was this case filed in Indiana? Presumably to take advantage of Indiana’s right of publicity law, perhaps the most extensive right of publicity statute in the world, providing recognition of the right for 100 years after death, and protecting not only the usual “name, image and likeness,” but also signature, photograph, gestures, distinctive appearances, and mannerisms. Defendants Wonderama and Rainbow End are small Indiana toy stores (in Anderson and Daleville, respectively) that sold the allegedly infringing doll. Of course, the real targets of this lawsuit are Mattel (a Delaware corporation) and Hard Rock Cafe (a Florida corporation).

Did Mattel usurp Ms. Day’s likeness for the doll? You be the judge:

This should be an interesting case to follow step-by-step. Plaintiff has retained a few high-profile entertainment attorneys and we can expect Mattel and Hard Rock will do the same. I’ll keep you updated with each new filing. In the meantime, more images of Ms. Day for comparison sake:

Court Case Number: 1:10-cv-01689-RLY-MJD
File Date: Thursday, December 23, 2010
Plaintiff: Patricia Day
Plaintiff Counsel: John Tehranian and Peter Afrasiabi of ONE LLP
Defendants: Wonderama Toys, Rainbow’s End Collectibles, Mattel Corp., Hard Rock Cafe International (USA), Inc.
Cause: Infringement of Right of Publicity (Indiana Code 32-36), False Association and False Endorsement
Court: Southern District of Indiana
Judge: Judge Richard L. Young
Referred To: Magistrate Judge Mark J. Dinsmore

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