Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA409213
`ESTTA Tracking number:
`05/14/2011
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92052197
`Plaintiff
`Terri Yenko Gould, Executor
`George E. Bullwinkel
`425 Woodside Avenue
`Hinsdale, IL 60521
`UNITED STATES
`geb@bullwinkel.com
`Testimony For Plaintiff
`George E. Bullwinkel
`geb@bullwinkel.com
`/George E. Bullwinkel/
`05/14/2011
`31. GMCI TM apps & regs.tiff ( 1 page )(404372 bytes )
`32. Statute - Trademark Act Sec 14.tiff ( 1 page )(842218 bytes )
`33. Statute - Right of Publicity - CA b.pdf ( 14 pages )(112180 bytes )
`34. Statute - Right of Publicity - PA b.pdf ( 2 pages )(53099 bytes )
`
`Proceeding
`Party
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`Correspondence
`Address
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`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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` including as a result of a likelihood of dilution by blurring or dilution by
`
`
`
`arnis men under section 1125(c) of this title, by the registration of a mark on the principal
`register established by this chapter, or under the Act of March 3, 1881, or the Act of February
`20, 1905:
`(1) Within five years from the date of the registration of the mark under this chapter.
`(2) Within five years from the date of publication under section 1062(c) of this title of a mark
`registered under the Act of March 3, 1881, or the Act of February 20, 1905.
`(3) 5
`fthe registered mark becomes the generic name for the goods or services, or
`a por ion
`ereof, for which it is registered, or is functional, or has been abandoned, or its
`registration was obtained fraudulently or contrary to the provisions of section 1054 of this title
`or of subsection (a), (b), or (c) of section 1052 of this title for a registration under this chapter,
`or contrary to similar prohibitory provisions of such said prior Acts for a registration under
`
`
`
`
`
`If the registered mark becomes the generic name for less than all of the goods
`r which it is registered, a petition to cancel the registration for only those goods
`or services may be filed. A registered mark shall not be deemed to be the generic name of
`goods or services solely because such mark is also used as a name of or to identify a unique
`product or service. The primary significance of the registered mark to the relevant public
`rather than purchaser motivation shall be the test for determining whether the registered mark
`has become the generic name of goods or services on or in connection with which it has been
`used.
`
`
`
`(4) At any time if the mark is registered under the Act of March 3, 1881, or the Act of February
`20, 1905, and has not been published under the provisions of subsection (c) of section 1062
`of this title.
`
`(5) At any time in the case of a certification mark on the ground that the registrant (A) does
`not control, or is not able legitimately to exercise control over, the use of such mark, or (B)
`engages in the production or marketing of any goods or services to which the certification
`mark is applied, or (C) permits the use of the certification mark for purposes other than to
`certify, or (D) discriminately refuses to certify or to continue to certify the goods or services of
`any person who maintains the standards or conditions which such mark certifies:
`Provided, That the Federal Trade Commission may apply to cancel on the grounds specified
`in paragraphs (3) and (5) of this section any mark registered on the principal register
`established by this chapter, and the prescribed fee shall not be required. Nothing in paragraph
`(5) shall be deemed to prohibit the registrant from using its certification mark in advertising or
`promoting recognition of the certification program or of the goods or services meeting the
`certification standards of the registrant. Such uses of the certification mark shall not be
`grounds for cancellation under paragraph (5), so long as the registrant does not itself
`produce, manufacture, or sell any of the certified goods or services to which its identical
`certification mark is applied.
`(Amended Oct. 9, 1962, 76 Stat. 771; Aug. 27, 1982, 96 Stat. 320; Nov. 8, 1984, 98 Stat.
`3335; Nov. 16, 1988, 102 Stat. 3940; Oct. 30, 1998, 112 Stat. 3069; Aug. 5, 1999, 113 Stat.
`218; Oct. 6, 2006, 120 Stat. 1730.)
`
`

`
`Practitioner's Guide to California Right of Publicity Law
`
`By .«f1\_Z21;1i..Q.___H_QQLé§ of .iiiI1§§E;21;.131.EMii5:E;rgi:2._§;b.-aysz__Ei::man__LLE
`
`I. LEGISLATION
`
`A. Right of Publicity
`
`California's right of publicity statute, Civil Code Section 3344, was first enacted in
`1971 and provides as follows.
`
`California Civil Code Section 3344:
`
`'3344. Use of Another's Name, Voice, Signature, Photograph, or Likeness in
`Advertising or Soliciting Without Prior Consent.
`
`(a) Any person who knowingly uses another's name, voice, signature,
`photograph, or likeness, in any manner on or in products, merchandise, or
`goods, or for purposes of advertising or selling, or soliciting purchases of
`products, merchandise, goods or services, without such persons prior
`consent, or, in the case of a minor, the prior consent of his parent or legal
`guardian, shall be liable for any damages sustained by the person or
`persons injured as a result thereof. In addition, in any action brought
`under this section, the person who violated the section shall be liable to
`the injured party or parties in an amount equal to the greater of seven
`hundred fifty dollars ($750) or the actual damages suffered by him or her
`as a result of the unauthorized use, and any profits from the unauthorized
`use that are attributable to the use and are not taken into account in
`
`computing the actual damages. In establishing such profits, the injured
`party or parties are required to prove his or her deductible expenses.
`Punitive damages may also be awarded to the injured party or parties. The
`prevailing party in any action under this section shall also be entitled to
`attorneys fees and costs.
`
`(b) As used in this section, "photograph" means any photograph or
`photographic reproduction, still or moving, or any videotape or live
`television transmission, of any person, such that the person is readily
`identifiable.
`
`(1) A person shall be deemed to be readily identifiable from a
`photograph when one who views the photograph with the naked
`eye can reasonably determine that the person depicted in the
`photograph is the same person who is complaining of its
`unauthorized use.
`
`(2) If the photograph includes more than one person so
`identifiable, then the person or persons complaining of the use
`shall be represented as individuals, rather than solely as
`
`

`
`members of a definable group represented in the photograph. A
`definable group includes, but is not limited to, the following
`examples: a crowd at any sporting event, a crowd in any street or
`public building, the audience at any theatrical or stage
`production, a glee club, or a baseball team.
`
`(3) A person or persons shall be considered to be represented as
`members of a definable group if they are represented in the
`photograph solely as a result of being present at the time the
`photograph was taken and have not been singled out as
`individuals in any manner.
`
`(c) Where a photograph or likeness of an employee of the person using the
`photograph or likeness appearing in the advertisement or other publication
`prepared by or in behalf of the user is only incidental, and not essential, to
`the purpose of the publication in which it appears, there shall arise a
`rebuttable presumption affecting the burden of producing evidence that
`the failure to obtain the consent of the employee was not a knowing use of
`the employee's photograph or likeness.
`
`(d) For purposes of this section, a use of a name, voice, signature,
`photograph, or likeness in connection with any news, public affairs, or
`sports broadcast or account, or any political campaign, shall not
`constitute a use for which consent is required under subdivision (a).
`
`(e) The use of a name, voice, signature, photograph, or likeness in a
`commercial medium shall not constitute a use for which consent is
`
`required under subdivision (a) solely because the material containing such
`use is commercially sponsored or contains paid advertising. Rather it shall
`be a question of fact whether or not the use of the person's name, voice,
`signature, photograph, or likeness was so directly connected with the
`commercial sponsorship or with the paid advertising as to create a use for
`which consent is required under subdivision (a).
`
`(f) Nothing in this section shall apply to the owners or employees of any
`medium used for advertising, including, but not limited to, newspapers,
`magazines, radio and television networks and stations, cable television
`systems, billboards, and transit ads, by whom any advertisement or
`solicitation in violation of this section is published or disseminated, unless
`it is established that such owners or employees had knowledge of the
`unauthorized use of the person's name, voice, signature, photograph, or
`likeness as prohibited by this section.
`
`(g) The remedies provided for in this section are cumulative and shall be in
`addition to any others provided for by law.
`
`(Legislative History: 1971 chapter 1595, 1984 chapter 1704).
`
`

`
`B. Descendibility
`
`California's descendibility statute for rights of publicity, Civil Code Section 990, was
`enacted in 1988 and provides as follows.
`
`California Civil Code Section 990
`
`‘990. Deceased Personality's Name, Voice, Signature, Photograph, or Likeness in
`Advertising or Soliciting.
`
`(a) Any Person who uses a deceased personality's name, voice, signature,
`photograph, or likeness, in any manner, on or in products, merchandise,
`or goods, or for purposes of advertising or selling, or soliciting purchases
`of, products, merchandise, goods, or services, Without prior consent from
`the person or persons specified in subdivision (c), shall be liable for any
`damages sustained by the person or persons injured as a result thereof. In
`addition, in any action brought under this section, the person who violated
`the section shall be liable to the injured party or parties in an amount
`equal to the greater of seven hundred fifty dollars ($750) or the actual
`damages suffered by the injured party or parties, as a result of the
`unauthorized use, and any profits from the unauthorized use that are
`attributable to the use and are not taken into account in computing the
`actual damages. In establishing these profits, the injured party or parties
`shall be required to present proof only of the gross revenue attributable to
`the use and the person who violated the section is required to prove his or
`her deductible expenses. Punitive damages may also be awarded to the
`injured party or parties. The prevailing party or parties in any action under
`this section shall also be entitled to attorneys fees and costs.
`
`(b) The rights recognized under this section are property rights, freely
`transferable, in Whole or in part, by contract or by means of trust or
`testamentary documents, Whether the transfer occurs before the death of
`the deceased personality, by the deceased personality or his or her
`transferees, or, after the death of the deceased personality, by the person
`or persons in whom the rights vest under this section or the transferees of
`that person or persons.
`
`(c) The consent required by this section shall be exercisable by the person
`or persons to Whom the right of consent (or portion thereof) has been
`transferred in accordance with subdivision (b), or if no such transfer has
`occurred, then by the person or persons to Whom the right of consent (or
`portion thereof) has passed in accordance with subdivision (d).
`
`(d) Subject to subdivisions (b) and (c), after the death of any person, the
`rights under this section shall belong to the following person or persons
`and may be exercised on behalf of and for the benefit of all of those
`persons, by those persons Who, in the aggregate, are entitled to more than
`a one—half interest in the rights.
`
`

`
`(1) The entire interest in those rights belong to the surviving
`spouse of the deceased personality unless there are any
`surviving children or grandchildren of the deceased personality,
`in which case one—half of the entire interest in those rights
`belong to the surviving spouse.
`
`(2) The entire interest in those rights belong to the surviving
`children of the deceased personality and to the surviving children
`of any dead child of the deceased personality unless the deceased
`personality has a surviving spouse, in Which case the ownership
`of a one—half interest in rights is divided among the surviving
`children and grandchildren.
`
`(3) If there is no surviving spouse, and no surviving children or
`grandchildren, then the entire interest in those rights belong to
`the surviving parent or parents of the deceased personality.
`
`(4) The rights of the deceased personality's children and
`grandchildren are in all cases divided among them and
`exercisable in the manner provided in Section 240 of the Probate
`Code according to the number of the deceased personality's
`children represented; the share of the children of a dead child of
`a deceased personality can be exercised only by the action of a
`majority of them.
`
`(e) If any deceased personality does not transfer his or her rights under
`this section by contract, or by means of a trust or testamentary document,
`and there are no surviving persons as described in subdivision
`
`(d), then the rights set forth in subdivision (a) shall terminate.
`
`(f) (1) A successor—in—interest to the rights of a deceased personality under
`this section or a licensee thereof may not recover damages for a use
`prohibited by this section that occurs before the successor—in—interest or
`licensee registers a claim of the rights under paragraph (2).
`
`(2) Any person claiming to be a successor—in—interest to the
`rights of a deceased personality under this section or a licensee
`thereof may register that claim with the Secretary of State on a
`form prescribed by the Secretary of State and upon payment of a
`fee of ten dollars ($10). The form shall be verified and shall
`include the name and date of death of the deceased personality,
`the name and address of the claimant, the basis of the claim,
`and the rights claimed.
`
`(3) Upon receipt and after filing of any document under this
`section, the Secretary of State may microfilm or reproduce by
`other techniques any of the filings or documents and destroy the
`
`

`
`original filing or document. The microfilm or other reproduction
`of any document under the provision of this section shall be
`admissible in any court of law. The microfilm or other
`reproduction of any document may be destroyed by the Secretary
`of State 50 years after the death of the personality named
`therein.
`
`(4) Claims registered under this subdivision shall be public
`records.
`
`(g) No action shall be brought under this section by reason of any use of a
`deceased personality's name, voice, signature, photograph, or likeness
`occurring after the expiration of 50 years from the death of the deceased
`personality.
`
`(h) As used in this section, "deceased personality" means any natural
`person whose name, voice, signature, photograph, or likeness has
`commercial value at the time of his or her death, whether or not during the
`lifetime of that natural person the person used his or her name, voice,
`signature, photograph, or likeness on or in products, merchandise or
`goods, or for purposes of advertising or selling, or solicitation of purchase
`of, products, merchandise, goods or service. A "deceased personality" shall
`include, without limitation, any such natural person who has died within
`50 years prior to January 1, 1985.
`
`(i) As used in this section, "photograph" means any photograph or
`photographic reproduction, still or moving, or any video tape of live
`television transmission, of any person such that the deceased personality
`is readily identifiable. A deceased personality shall be deemed to be readily
`identifiable from a photograph when one who views the photograph with
`the naked eye can reasonably determine who the person depicted in the
`photograph is.
`
`(1') For purposes of this section, a use of a name, voice, signature,
`photograph, or likeness in connection with any news, public affairs, or
`sports broadcast or account, or any political campaign, shall not
`constitute a use for which consent is required under subdivision (a).
`
`(k) The use of a name, voice, signature, photograph, or likeness in a
`commercial medium shall not constitute a use for which consent is
`
`required under subdivision (a) solely because the material containing the
`use is commercially sponsored or contains paid advertising. Rather it shall
`be a question of fact whether or not the use of the deceased personality's
`name, voice, signature, photograph, or likeness was so directly connected
`with the commercial sponsorship or with the paid advertising as to
`constitute a use for which consent is required under subdivision (a).
`
`(1) Nothing in this section shall apply to the owners or employees of any
`
`

`
`medium used for advertising, including, but not limited to, newspapers,
`magazines, radio and television networks and stations, cable television
`systems, billboards, and transit ads, by whom any advertisement or
`solicitation in violation of this section is published or disseminated, unless
`it is established that the owners or employees had knowledge of the
`unauthorized use of the deceased personality's name, voice, signature,
`photograph, or likeness as prohibited by this section.
`
`(m) The remedies provided for in this section are cumulative and shall be
`in addition to any others provided for by law.
`
`(n) This section shall not apply to the use of a deceased personality's
`name, voice, signature, photograph, or likeness, in any of the following
`instances:
`
`(1) A play, book, magazine, newspaper, musical composition,
`film, radio or television program, other than an advertisement or
`commercial announcement not exempt under paragraph (4).
`
`(2) Material that is of political or newsworthy value.
`
`(3) Single and original works of fine art.
`
`(4) An advertisement or commercial announcement for a use
`permitted by paragraph (1), (2), or (3).
`
`(Legislative History 1984 chapter 1704, 1988 chapter 113).
`
`II. CASE LAW
`
`Substantive decisions on California's statutory and common law rights of publicity
`are summarized below in reverse chronological order.
`
`Astaire v. Best Film & Video Corp., 1997 WL 336110 (9th Cir. (Cal.), June 20,
`1997)
`
`In June 1997, the Ninth Circuit held that a promotional segment in an instructional
`dance video incorporating footage of Fred Astaire was exempt from liability under
`Section 990(n)(1).
`
`Fred Astaire's widow, Robyn Astaire, sued Best Film & Video Corporation ("Best"), a
`New York corporation that manufactures, markets, and distributes pre—recorded
`videotapes. Mrs. Astaire alleged that Best's use of her late husband's image in a
`series of dance instructional videotapes violated her statutory right to control the
`use of her husband's name and likeness under California Civil Code Section 990.
`
`Each of Best's videotapes opened with about 90 seconds of footage of Fred Astaire
`from two of his motion pictures.
`
`The United States District Court, Central District of California, Judge David V.
`Kenyon, granted summary judgment to Astaire's widow, holding that Best's use of
`the Astaire film clips violated the "'on or in products, merchandise, or goods'" prong
`
`

`
`of Section 990(a).
`
`The Ninth Circuit reversed and remanded, holding that Best's use of the Astaire
`clips was exempt from liability under Section 990(n)(1). Although by its terms, that
`provision only exempts film and television programs, the court reasoned that pre-
`recorded videotapes were encompassed in the "film" exemption. The Court
`concluded that the exemption applied even if Best's use of the Fred Astaire film clips
`was an advertisement or commercial announcement.
`
`Kareem Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996).
`
`The Ninth Circuit held, in Kareem Abdul-Jabbar, that abandonment is not a viable
`defense to a right of publicity claim.
`
`Kareem Abdul-Jabbar sued General Motors and its advertising agency for violations
`of the Lanham Act and his statutory and common law rights of privacy based on an
`Oldsmobile television commercial that aired during the NCAA basketball
`tournament. As an NCAA corporate sponsor, Oldsmobile referred, in the format of a
`trivia quiz, to an NCAA record: Lew Alcindor's selection as Most Outstanding Player
`in three NCAA tournaments. The United States District Court for the Central District
`
`of California, Judge Irving Hill, granted summary judgment to General Motors on
`the grounds that Abdul-Jabbar had abandoned his rights to the name Lew Alcindor
`by legally changing his name and refraining from all commercial or other use his
`birth name. The Ninth Circuit reversed,-1- holding that a legal name change is not a
`defense to Lanham Act ' 43(a) false endorsement or a right of publicity claim:
`
`"We hold that Abdul-Jabbar has alleged sufficient facts to state a claim
`under both California common law and section 3344. The statute's
`
`reference to ‘name or likeness’ is not limited to present or current use. To
`the extent GMC's use of the plaintiffs birth name attracted television
`viewers’ attention, GMC gained a commercial advantage." Abdul-Jabbar, 85
`F.3d at 415.
`
`After remand, the case settled out of court.
`
`Montana v. San Jose Mercury News, Inc., 34 Cal.App.4th 790, 40 Cal.Rptr.2d
`639 (Ct.App. 1995).
`
`In Montana, the California Court of Appeal affirmed summary judgment against
`football star Joe Montana's claim that a newspaper's poster reproducing its Super
`Bowl cover story violated his Section 3344 and common law rights of publicity.
`Noting that Section 3344(d) does not require consent for use of a "name, voice,
`signature, photograph, or likeness in connection with any news, public affairs, or
`sports broadcast or account, or any political campaign," the court held that 1) the
`posters represented newsworthy events, and 2) a newspaper has a constitutional
`right to promote itself by reproducing its new stories.
`
`Newton v. Thomason, 22 F.3d 1455 (9th Cir. 1994).
`
`In Newton, the Ninth Circuit held that naming a dramatic character after a celebrity
`was not an actionable violation of his right of publicity.
`
`Country music performer and songwriter "Wood Newton" sued television producers
`
`

`
`Harry Thomason and Linda Bloodworth—Thomason, Burt Reynolds, and Mozark
`Productions, Inc. alleging damages based on their use of his name for a character in
`a television series, "Evening Shade." The United States District Court for the Central
`District of California, Judge James Ideman, granted summary judgment in favor of
`defendants.
`
`The Ninth Circuit (Circuit Judges Pregerson, O'Scannlain, and Fernandez) affirmed,
`holding that there was no evidence that Newton's name was used for a commercial
`purpose, as required for violation of his right of publicity.
`
`Dora v. Frontline Video, Inc., 15 Cal.App.4th 536, 18 Cal.Rptr.2d 790 (Ct.App.
`1993)
`
`In this action, the California Court of Appeals affirmed Superior Court Judge David
`Horowitz’ grant of summary judgment against surfer Mickey Dora, who complained
`that a videotape documentary misappropriated his right of publicity.
`
`In 1987, Frontline Video, Inc. ("Frontline") produced a video documentary, "The
`Legends of Malibu," a documentary that chronicled the early days of surfing,
`showing contemporaneous footage of famous surfers, including Mickey Dora.
`
`Arguing that he was never interviewed nor photographed by Frontline and did not
`consent to any use of his name, photograph, likeness, or voice, Dora sued Frontline
`for common law and statutory misappropriation of his name and likeness. Superior
`Court Judge David Horowitz granted summary judgment to Frontline and Dora
`appealed.
`
`Writing for the California Court of Appeal (Second District), Judge Nott held that
`Frontline was not required to obtain Dora's consent and affirmed the summary
`judgment because the documentary contained matters of public interest and "public
`affairs" exempted from liability under Section 3344(d): "[Surfing] has created a
`lifestyle that influences speech, behavior, dress, and entertainment, among other
`things. .
`.
`. It would be difficult to conclude that a surfing documentary does not fall
`within the category of public affairs." Id. at 546.
`
`Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992), cert. denied, 506 U.S.
`1080 (1993).
`
`In Waits, the Ninth Circuit affirmed a $2.5 million verdict against Frito—Lay and its
`advertising agency on a voice imitation claim.
`
`Singer Tom Waits sued Frito—Lay claiming false endorsement under the Lanham Act
`and misappropriation of his voice in a Frito—Lay radio commercial. After trial before
`Judge James Ideman in the United States District Court (Central District of
`California), the jury returned a $2.5 million verdict in Waits’ favor comprised of
`$375,000 in compensatory damages, $2 million in punitive damages, and the
`remainder in attorneys’ fees.
`
`The Ninth Circuit affirmed, citing its holding in Midler v. Ford Motor C0,, 849 F.2d
`460, 463 (9th Cir. 1988): "when a distinctive voice of a professional singer is widely
`known and is deliberately imitated in order to sell a product, the sellers have
`appropriated what is not theirs and have committed a tort in California."
`
`The court also affirmed the $2 million punitive damages award finding that
`
`

`
`defendants consciously disregarded Waits’ right to control his identity. Waits, 978
`F.2d at 1105. In affirming the compensatory damage award, the court referred to
`clear evidence of Waits’ outspoken public stance against doing commercial
`endorsements, his embarrassment when the commercial aired, and the injury to his
`good will and future publicity value. Id. at 1103-1104.
`
`White v. Samsung, 971 F.2d 1395 (9th Cir. 1992), cert. denied, 113 S.Ct. 2443
`(1993).
`
`In White, the Ninth Circuit found triable issues of fact regarding whether game show
`hostess Vanna White's likeness was misappropriated in Samsung's print
`advertisement depicting a futuristic robot game show hostess.
`
`White claimed that the robot advertisement, which was one in a series of humorous
`depictions of life in the future, violated her rights under the California Civil Code,
`the common law right of publicity, and the Lanham Act. The print advertising
`campaign hypothesized "outrageous future outcomes" for various aspects of popular
`culture such as a future depiction of raw steak as "health food" and a future game
`show featuring robot hostesses rather than human beings. The advertisement
`showed a feminine robot —dressed in a wig, gown, and jewelry — beside a "Wheel of
`Fortune"—like game show set with the caption, "Longest—running game show, 2012
`AD." The United States District Court for the Central District of California, Judge
`Ronald S.W. Lew, granted a summary judgment in favor of Samsung on each claim.
`
`The Ninth Circuit (Circuit Judges Goodwin, Pregerson and Alarcon) reversed,
`holding that White's common law right of publicity was not limited to appropriation
`of her "name or likeness," and included any method of invoking an individual's
`"identity". After remand, the jury awarded damages of $403,000 in response to
`White's claim of $6 million in compensatory damages. The matter settled without
`further proceedings.
`
`New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302 (9th
`Cir. 1992).
`
`In this decision, the Ninth Circuit found that an opinion survey and a "900" number
`asking readers to identify the sexiest member of a rock and roll band were not
`actionable violations of any right of publicity.
`
`New Kids on the Block sued News America Publishing, Inc. (then publisher of "Star")
`and Gannett Satellite Information Network, Inc. (publisher of "USA Today"), alleging
`trademark infringement and misappropriation of rights of publicity based on
`defendants’ pay—per—call public opinion polls asking which member of the group was
`the sexiest or most popular.
`
`On cross motions for summary judgment, the United States District Court, Judge
`William J. Rea, held that the First Amendment protected the publishers against
`Lanham Act and right of publicity claims because the polls were related to news-
`gathering and dissemination of information.
`
`The Ninth Circuit affirmed, holding that the New Kids’ right of publicity claims were
`not actionable because they fell within the exemption under Section 3344(d) for use
`"in connection with any news, public affairs, or sports broadcast or account."
`
`

`
`Joplin Enterprises v. Allen, 795 F. Supp. 349 (W.D. Wash. 1992).
`
`In Joplin, the District Court applied California's Section 990 to hold that a two—act
`biographical play about deceased vocalist Janis Joplin was not actionable.
`
`Janis Joplin's devisees alleged that the drama was a copyright infringement and
`misappropriation of Joplin's rights of privacy and publicity. The District Court,
`Judge Coughenour, concluded that Joplin's estate could not maintain a viable right
`of publicity claim under California Civil Code ‘990 because, by its terms, that
`section applies to "merchandise, advertisements, and endorsements" and exempts
`any "play," "book," or "musical composition" from liability.
`
`Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), cert. denied sub nom
`Young Rubican, Inc. v. Midler.
`
`In this 1988 decision, the Ninth Circuit "recognized," a California common law right
`of publicity proscribing imitations of a professional singer's voice for commercial
`purposes.
`
`Singer Bette Midler sued Ford Motor Company and its advertising agency based on a
`television commercial employing a "sound alike" vocalist performing one of Midler's
`well known hit songs, "Do You Want to Dance." The United States District Court for
`the Central District of California, Judge Ferdinand F. Fernandez, entered summary
`judgment in favor of defendants, following a then established line of cases holding
`voice imitation was not actionable.
`
`The Ninth Circuit (Circuit Judges Hug, Tang, and Noonan) reversed, holding that
`although Midler could n