RESILIENT MEDIA ENTERTAINMENT : SPOTLIGHT SHING ON IVAN J. PARRON, Entertainment Attorney / Dealmaker

Ivan J. Parron, Esq. currently serves as attorney and principal of Parron Law, an entertainment, media and sports law firm based out of Miami Beach, Florida. Mr. Parron works as business and legal counsel to television networks, motion picture studios, producers, writers, directors and actors. His law practice has particular emphasis on representing producers and production companies such as Endemol Latino North America in the international licensing and distribution of format television. The firm also has a particular focus in the unscripted/reality television genre. Mr. Parron is currently an appointed board member and officer of the Entertainment, Arts and Sports Law section of the Florida Bar, as well as an appointed board member of both the Miami-Dade County Film and Entertainment Advisory Board and the City of Miami Beach Film & Television Production Industry Council. As a CEO, board member, and an in-house attorney, Mr. Parron has over 15 years of executive and legal experience in the television, digital media, music and entertainment industries.

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Entertainment Law 305 (Miami)

Blog by entertainment attorney and entrepreneur Ivan J. Parron, Esq. about entertainment, media and sports law with a Miami twist...

Tuesday, July 26, 2011Kim Kardashian's Face-Off with Old Navy

At first glance it's the kind of thing that probably leaves you wondering where she gets off -- how someone could dare to try to prevent another aspiring female star from even looking like her. But take a second look, in more ways than one, and the $20 million lawsuit that Kim Kardashian is now bringing against Old Navy is a little more complicated than that. In the end, it may very well have merit and, regardless, it says plenty about the state of fame in our current culture and the fierce drive by those who have it to protect it.
If you're not aware of the case, Kardashian is suing Old Navy over a new commercial that she says features someone who looks uncannily like her, a casting decision that she believes was anything but accidental. Kardashian's attorney calls it a violation of his client's intellectual property -- in this case, Kardashian's very image -- and aims to hit Old Navy hard for the infringement. While to the average person the suit may seem frivolous at best, patently ridiculous at worst, believe me, Kim has a case. And one she can win.

There's plenty of precedent for what Kardashian and her lawyer are doing. In fact, it's done all the time, especially since we entered the era of omnipresent and highly lucrative celebrity endorsements, mass-media saturation and the ephemeral "instant-fame" that it can create and destroy in the span of just a few days and at the whim of a fickle public. Now more than ever for a celebrity, you are your brand. Kardashian knows this very well, which is why she's managed her image carefully and sometimes rabidly. Do you consider her one of those people we derisively refer to as "famous for nothing?" What kick-started that fame and eventually catapulted her to her current position in pop culture can be endlessly debated, but make no mistake, she's been very shrewd about managing her brand -- herself. That's why this lawsuit matters and why its outcome will have lasting repercussions legally and culturally, as others like it have.

If you need a quick refresher on just a few of those others, there was Bette Midler's famous suit against Ford back in 1988, in which she took on the company and its ad agency, Young and Rubicam, for using a vocal performer who sounded conspicuously like her to sell cars in one of their commercials. Vanna White, meanwhile, sued Samsung in 1993 for its use of a blonde wig-wearing robot that was supposed to be a game show host from the future, all to sell electronics. White maintained that the creation was clearly intended to reference her and her well-known status as the letter-turner on Wheel of Fortune. She won a partial victory. And these examples stand as merely a few forebears of what's possible now in our extraordinarily litigious and media-inundated culture. Since then, there have been claims against the use of a golf swing that supposedly bore too much of a resemblance to Tiger Woods's signature swing, and of course, Lindsay Lohan's infamous attempt to force the E-Trade baby into submission because it dared, in a commercial, to refer to a baby named Lindsay as a "milkaholic." (Don't ever let it be said that a certain amount of egomanical celebrity paranoia and isn't at play in some of these cases.) And this doesn't even get into the debate that continues to rage over the extension of personality and publicity rights after death. The legal battle to control that singular brand -- your very likeness -- doesn't end at the end of your life anymore.

For Kardashian, what her lawyer needs to prove is what Midler's attorney did all those years ago, namely that the company he's going after specifically sought an imitation of his client with the possible intention of knowingly deceiving the public. Midler turned down Ford when it first came to her about doing the commercial she eventually sued over, and in response the company hired one of her back-up singers to ostensibly sing like her. Obviously, since the girl in the Old Navy ad, Melissa Molinaro, just happens to be Kardashian ex Reggie Bush's new girlfriend, her lawyer has an instant connection to his client to exploit. There's no way Old Navy didn't know who it was getting when it hired Molinaro, and that may make it easier to prove that the company's intention was always to at least indirectly draw a mental link to Kardashian.

In the end, it's left up to the individual viewer to decide whether he or she is confused and believes that the person in the ad really is Kim Kardashian. But a court gets to decide whether the resemblance is close enough to violate the rights of Kardashian and whether that violation is willful and egregious enough to make Old Navy pay up to the tune of millions. Whether you think the suit itself is egregious doesn't much matter. This is the way it is these days and how it's going to stay.

Posted by Ivan J. Parron, Esq. at 2:13 PM 0 comments

Tuesday, June 7, 2011How Private are Anthony Weiner's Privates?

So, what have we learned this week? Here's a hint: It's something New York Congressman Anthony Weiner learned the hard way (no pun intended).

If you want to keep something private, don't let it get anywhere near the Internet.

At this point, no matter what your politics are, I don't think anyone would argue that what Anthony Weiner did was monumentally stupid. We could debate for years what drives supposedly smart people in positions of power to somehow believe that they'll never get busted engaging in behavior that someone with the IQ of a hush puppy would know is a personal and professional cataclysm waiting to happen. Who knows, maybe if you insulate yourself for too long at the top and breathe only the thinned-out air up there you forget that everyone has to yield to the laws of physics; no one is immune to them. Maybe Weiner convinced himself that as a firebrand politician the camera seemed to love, he could talk his way out of anything. Maybe he just wasn't thinking at all and instead did what millions have done before him -- namely allowed the proverbial little head to do the thinking for the big one. Regardless, he's now in a world of trouble and it could very likely spell the end of his political career.

So what was the one colossal mistake that Anthony Weiner made that started the landslide which eventually came down on top of him (besides taking a picture of his crotch and Twitter-herding co-eds in the first place)? He hit one wrong button; he publicly tweeted something that he meant to direct message. Once he did that, the picture that he had meant to be private went very, very public -- and that was his inevitable undoing. But there's still a question in all of this about who a tweet -- or really any other Internet communication -- belongs to legally. In other words, sure Anthony Weiner is a public figure and sure if he sends something dumb out into the ether, that dumb thing immediately becomes important because he's an elected official; any journalist in America can claim the fair use of it because it's news. But what about the women who are now coming out of the woodwork, sharing their privately tweeted pictures and Facebook messages from Weiner with the world? It's true that Weiner, from a common sense perspective, shouldn't have had an expectation of privacy in sending X-rated communications to women he'd never even met; only a moron or someone seriously and arrogantly deluded would think otherwise. But how about from a legal perspective? Does Weiner have any recourse at all? Does he have any claim to the images of him that are now being splashed all over the blogs and on TV?

Anthony Weiner took the pictures. He posted them via his Twitter account. So does he "own" them?
The answer is threefold: yes, no, and it hardly matters.

Obviously this isn't a "publicity law" case, per se, which is a specialty of mine; it delves far more into personal privacy law in the age of social media. Still, the legal question of who owns the digital transmissions you send, likely dozens of times a day, is a pertinent one no matter from which direction you examine it. While there's been a lot of controversy over this issue, particularly over the question of who owns e-mails or social media transmissions sent from a corporate account, there's just no denying one simple fact: If you create something, you own the copyright to it, and an e-mail, tweet or Facebook message, it can easily be argued, is a creative endeavor. That would mean that, at least in theory, Anthony Weiner holds a copyright on the photos and messages he sent to those women he supposedly had "cyber-affairs" with. Now, if he sent any of these messages from his work computer, the whole discussion is immediately moot simply because he happens to work as United States congressman, which means that all activity on his computer -- social media or otherwise -- is automatically a matter of public record. But if not, then what that means is that, legally at least, he might be able to sue anyone who distributes his personal material under copyright laws. Of course this is also a moot point at this stage because the genie is already well out of the bottle and trying to put it back in via the courts wouldn't just be a futile gesture, it'd probably be a PR nightmare for Weiner. He could, however, if he felt like being suicidally vindictive, attempt to legally take on those who leaked his personal transmissions to the press. He might lose -- but he could try. Celebrities do that sort of thing all the time.

Now, however, comes the next inevitable stage of this sordid saga -- and the next big question.

What can Weiner do if the women he talked dirty to online -- a couple of whom have already started making the rounds on TV -- begin trying to sell the congressman's tweets and pictures, maybe even ones we haven't yet seen, in an effort to make money for themselves? In other words, what if two or three of these co-eds land book deals and decide to take Weiner's pictures to print? Can he take legal action then? The answer is an emphatic yes. It's one thing for a journalist to make a fair use argument; it's another thing entirely for someone to use what's technically copyrighted material to make money for him or herself. That's where the subject of publicity rights comes in. Yes, there's some wiggle room and the case law isn't quite set in stone, but a good attorney -- and you have to imagine Anthony Weiner has a very good attorney -- could easily argue that his client is entitled to retain the rights to his words and image and to prevent anyone from using either for profit, particularly when it's being used in a disparaging light.

Once again, will this happen? Maybe not. But this tale is still unfolding and at this point anything is possible. I mean, who would have thought a U.S. congressman would be dumb enough to think he could get away with this kind of thing in the first place? We're already way down the rabbit hole here.

Posted by Ivan J. Parron, Esq. at 7:56 PM 0 comments