In The News

How Litigation in Nashville is Different than in Bigger Cities

I get asked a lot to serve as local counsel on cases for lawyers from LA, New York, Chicago and DC.  (I also end up hiring lawyers in those cities.)  Sometimes we’re asked to play a minor role – some call this “elbow counsel,” where we’re really just on the case in name only.  Generally, though, lead counsel sees that we can offer valuable insight into not just the substantive law but also the local landscape.  And I assure you the landscape here in Nashville is much different than it is in larger cities.

Given the sheer size of bigger cities, lawyers there often never appear more than once in front of the same judge and often never interact with the same opposing counsel.  With the virtual anonymity that comes with the territory in those jurisdictions, lawyers have every reason to practice scorched-earth litigation.  They can be as ruthless as they want – no one knows who they are and, very likely, no one will ever see them again.

Practice here in Nashville is completely different.  Although our city is booming, we have only four active U.S. District Judges and only four chancellors at the state court level.  In this big small town, everyone knows everyone. And how you conduct yourself in a single case can be remembered for the rest of your career.  Although we advocate zealously, we refuse to stab each other in the back.   And we know how easy it is to be short-sighted.  Given the close-knit relationships here, we still litigate with a Southern gentility, or what the profession calls “civility.”  I hope it always stays this way, even as we grow and welcome newcomers from other jurisdictions.

Lessons Businesses & Public Figures Can Learn from NCAA Football Players

Businesses who use celebrities to endorse their products should pay attention to two recent decisions, as should celebrities and other public figures.

In two recent cases, former college football players filed suit against Electronic Arts, Inc., better known as EA, the maker of video game "NCAA Football."  The two primary plaintiffs were Ryan Hart, who played quarterback for Rutgers in the early 2000s, and Samuel Keller, who was QB at Arizona State in the mid 2000s.

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Although EA never used the players' names, it honed in on real-life details of each player, including jersey number, jersey color, type of helmet and facemask, player height and weight, physical appearance, and throwing and interception stats.  The players sued on behalf of themselves and other players.  The heart of each suit was that EA had violated their right of publicity.

The right of publicity is a creature of state law and, although they have a lot in common, all 50 states treat the right of publicity differently.  Typically a plaintiff must show the a defendant used an individual's name, photograph or likeness to advertise goods or services without the plaintiff's prior consent.  The right typically covers any form of an individual's likeness or persona.  For example, Bette Midler sued when Ford used someone who sounded like her to promote a car in a song, and Vanna White sued Samsung for using a robot dressed in a wig, gown and jewelry to turn letters on a game resembling Wheel of Fortune.  The right also typically covers any medium, from photographs to films to video games.

In these two most recent cases, EA argued that it had a First Amendment right to use these college players' likenesses in its video games.  The Third Circuit and Ninth Circuit Courts of Appeals acknowledged that a First Amendment right of expression extends to video games but held that the players' right of publicity trumped EA's First Amendment right.  The courts both employed the "Transformative Use" balancing test and concluded that EA's video game failed to transform the players' likenesses.  The dissenting judges in both cases disagreed, finding that the video games were highly transformative, given that gamers have the ability to change the avatars' appearances and to never encounter Hart or Keller if they so choose.

Businesses who utilize the images and personas of public figures and celebrities should always obtain consent prior to using the image.  Celebrities often give consent to have their songs recorded and published (a right governed by copyright), but that consent often does not encompass the right of publicity.  Celebrities should always check to see to what extent they have consented to having their right of publicity used.  The right of publicity continues to be one of the most rapidly changing and evolving areas of intellectual property law.

Nashville Film Festival Begins -- Good Time to Consider Legal Issues in Film

Get ready for some great films, Nashville.  Running continuously since 1969, this year's Nashville Film Festival is slated for April 18-25, 2013.  This year's Festival will also celebrate Kurdish Films, presented in part by the Academy of Motion Picture Arts & Sciences.

This is also a great time to consider legal issues in film.  For film-makers, these range from obtaining clearance to use music in films to protecting your script and your work through copyright, both pre-publication and after the movie has been shown to the public; from protecting the name of your film and merchandise through trademark to obtaining permission to model characters after actual people (the "right of publicity"); and from drafting contracts to obtain financing to negotiating distribution deals.  When these issues aren't dealt with on the front end, confusion ensues, feelings get hurt, and lawsuits get filed.

For some good free resources, check out the websites of Arts & Business Council of Greater Nashville and FilmNashville.  For more tailored advice, talk with your attorney or one who focuses on entertainment legal issues.

Stop by this year's Film Festival for not only a movie but also one of the panels that explore some of these specific legal issues.  Get your tickets here.