Alerts

AD-ttorneys@law – October 2, 2019

Alerts / October 2, 2019

In This Issue:

‘King of R&B’ Jacquees Sued for Failure to Promote

NJ-based promoter alleges $100K in damages after show gets cancelled

That’s New to Us!

One of the perks of putting together advertising news is covering entertainers, influencers and social media figures. It grants us a peek at what’s new and (sometimes) interesting in the world of entertainment, which in turn gives us a chance to drop names and appear to be happening at cocktail parties.

Let’s keep it rolling, ladies and gentlemen – allow us to introduce Rodriquez Jacquees Broadnax, known by his stage name, Jacquees. He’s a young R&B singer who’s scored at least one hit, 2016’s “B.E.D.” With two albums under his belt, he’s recorded with the likes of T.I. and Chris Brown. He likes to sing about sex; if you’re going to give him a listen at work, make sure your headphones are on.

In May of this year, Jacquees and his talent agency, ICM, were slapped by Ill Intent Entertainment, LLC, with a suit alleging breach of contract, breach of covenant of good faith and fair dealing, unjust enrichment, and detrimental reliance for failing to promote to his Instagram followers a concert he booked through Ill Intent.

Sayerville Scam?

Ill Intent claims that the show, scheduled for February 2019 in New Jersey, was eventually cancelled after several missteps by the self-proclaimed “King of R&B.”

According to the original complaint, Ill Intent gave the singer $7,500 in exchange for announcing the show on his Instagram feed by Christmas of last year. The plaintiff asked for its money back when Jacquees failed to post about the concert, but it was assured by Jacquees’ agency that the announcement would happen and was promised additional promotion in the form of a video. Ill Intent claims that both these promises were broken as well.

According to the complaint, the concert was pushed up a few months and a new contract was drawn up, with promises of more money for the singer in exchange for social media promotion within five days of signing. Ill Intent says Jacquees bailed on this contract, too, leading to the cancellation of the show and an additional event. All told, Ill Intent claims losses of more than $100,000.

The Takeaway

Defendant ICM has filed a petition to remove the case to federal court. As of now, no state court proceedings have been held on the action and neither Jacquees nor ICM has filed responsive pleadings in the Superior Court action – but this sort of dispute is becoming less rare by the day.

If you’re a regular reader, you may be congratulating us on our prescience; back in August, we wrote a piece about Luka Sabbat, an influencer who allegedly bailed on his promotion duties after getting paid handsomely for them. Here’s what we wrote then: “This case is a rare, high-profile legal dispute between influencers and their agency enablers – expect more of these disputes to crop up as influencers come into their own and contract rulings in the space start piling up.”

Victoria Beckham – Fashion Victim?

Another paparazzi plaintiff sues over photo use

Rouge Gallery

Add Victoria Beckham to the list.

Gigi Hadid, Nicki Minaj, Ariana Grande, Khloe Kardashian and now the world’s best-known Spice Girl, Victoria Beckham – there’s a long list of celebrities who have been sued by photographers for using on their own media platforms the photos the photographer took of them. Throw a handful of fashion houses in there that have also been sued by photographers who catch them using the photographers’ shots to advertise products.

It’s part of the topsy-turvy world of celebrity and fashion copyright, shaken up by ubiquitous digital images and the social media channels that spray them onto our devices.

There’s been an interesting reversal in this onslaught by paparazzi plaintiffs: Gigi Hadid, who, as noted in the article linked above, moved to dismiss a recent paparazzo’s suit by claiming fair use. (Hadid is the Kevin Bacon of these paparazzo suits; she seems connected to everything, whether in a suit that targets her directly or in the suit that inspired that one – her sister Bella is involved in suits as the model who’s wearing the clothes that are in the pictures the paparazzi are suing over.)

Another creative reversal: a suit filed by football player Odell Beckham, who charged a paparazzo with attempting to extort payment from him, presumably to avoid a similar suit.

The Takeaway

But back to that other Beckham: Posh Spice. The suit against her was filed in the Southern District of New York in mid-September by Bronx-based photographer Felipe Ramales, who claims he took a shot of Beckham wearing a floral pant-and-robe combo from her own VB brand. In the incredibly concise complaint (it’s five pages!), Ramales asserts that Beckham reposted the photo to her Instagram feed to promote her brand.

He’s alleging copyright infringement and seeks to be awarded either his actual damages and Beckham’s profits, gains or advantages of any kind attributable to her alleged infringement of the plaintiff’s photo or, alternatively, statutory damages of up to $150,000 per copyrighted work infringed. We’ll keep you posted. In the meantime, keep in mind that there are two sperate rights associated with photos of people – the copyright of the photo and the right of publicity of the person depicted. You need to clear both to commercialize a photo of a person. Also, remember that fair use is merely a defense and a far more difficult defense in commercial speech cases.

NAD Exonerates Perdue’s Art Department

Tyson’s attack on illustrations of freewheeling chickens falters

Taxed by Taxonomy

Between “organic,” “free-range,” “all-natural” and a spate of other terms describing the wholesome origins of foodstuffs, individual product lines have become quite balkanized. So, to prevent confusion, it’s important to note exactly what definitional crevasse your food product has found itself lodged in.

Let’s be clear; today we’re discussing a dispute regarding Perdue Farms’ “non-organic fresh chicken” product. Tyson Foods, Perdue’s arch nemesis, challenged advertising related to the Perdue product before the National Advertising Division (NAD), whose decision in the dispute is one of the rare instances where the challenged advertising escapes unscathed.

The Beef About the Chicken

Tyson took issue with Perdue’s claim that the chickens are raised “cage-free,” but not because the claim was false; there seems to be no question of the veracity of that claim. Rather, Tyson took issue with the artwork that appeared on the packaging of the chicken product line. Tyson argued that the product packaging, online advertising and TV commercials of the product are misleading because they include “artwork depicting chickens grazing outdoors” and that the artwork implied “that the chickens raised for Perdue’s conventional chicken product line are raised in an open field, and are therefore ‘free-range’ or ‘pasture-raised’ … .” Perdue argued that the artwork on its packaging is simply decorative and that it is not making such implied claims.

The NAD came down on Perdue’s side, pointing out that Perdue’s consumer perception survey sufficiently demonstrated that consumers were not mislead by the imagery. Tysons’ own study didn’t provide a sufficient counterargument, because it “artificially directed respondents to focus on the artwork in isolation, rendering the results unreliable.”

The Takeaway

The final verdict? The artwork was “decorative and atmospheric” – in fact, it was “cartoonish, or somewhat abstract, rather than a depiction of the actual conditions under which Perdue’s chickens are raised.” The implied claims that Tyson saw lurking in that imagery were mere phantoms.

The television and online ad claims were rejected as well, since the artwork was depicted on the packages in the ads rather than constituting separate advertising that required its own review.

An interesting side note: Earlier in the dispute, Perdue requested that the NAD “administratively” close the matter because the labels had already been approved by the U.S. Department of Agriculture Food Safety and Inspection Service; however, the NAD decided to forge ahead, noting that “although FSIS is empowered to review ‘graphic matter’ relating to animal-raising claims, there was no evidence in the record that the artwork was specifically reviewed or that implied claims were evaluated for consumer perception to determine if they are false or misleading.”

Hear that, folks? Don’t rely on federal review to insulate you from all advertising challenges.

Coolest Man on Instagram Gets Copyright Case Tossed

Italian playboy can’t prove E*Trade commercial actor was similar enough to his own “persona”

Stay Thirsty

Remember the Dos Equis ad campaign “The Most Interesting Man in the World”? The debonair, Fernando Lamas-inspired international man of action? Well, there’s a real-life analog: an Italian businessman, investor and DJ named Gianluca Vacchi. He’s called “the coolest man on Instagram,” a sobriquet that was clearly inspired by the blockbuster beer campaign.

Vacchi made himself famous a few years back by posting a bunch of videos of him and his wife dancing on the deck of his yacht (see here and here). These are good-looking people, and they’re loaded, usually the types that get the internet hate machine fired up. But Vacchi and spouse have a great vibe for people you’re probably supposed to be jealous of; the videos feature lively, well-choreographed routines, and the whole atmosphere seems good natured and enjoyable – if filthy-rich people are allowed to have fun, this is the way they should do it.

Disgraziato

But, alas, Vacchi had to go and ruin it all by suing E*Trade, which, according to the coolest man’s complaint, created video advertisements that violated his copyrights. Of what? Of his character, that’s what. Remember the “James Bond” MGM versus Honda Motor Car case a couple of decades ago that changed the Sam Spade rule to find that a character might be sufficiently articulated to have copyright protection and not be just a collection of stock elements?

According to Vacchi’s complaint, “… in or about mid-2017, E*Trade created, produced, and published a certain commercial containing a character that is essentially a clone of Vacchi, dancing with women on a boat while DJ’ing: conduct that … has become synonymous with the image and persona created by Vacchi.” Vacchi wasn’t a carefree aging hipster with a happy boat anymore; he was a carefully crafted persona. Which sort of deflates the fun.

But in any case, sue he did, seeking a permanent injunction against the references to his character along with more than $2 million in compensatory damages. What does the complaint allege? False association and unfair competition as defined under the Lanham Act, violation of New York state’s civil rights law, copyright infringement for the E*Trade videos themselves – Vacchi had registered several of his own clips – and most important, the character that appeared in them with some of the same trappings as Vacchi – tattoos, silver hair and distinctive eyeglasses.

The Takeaway

The Southern District of New York, however, was not buying it and granted E*Trade’s motion to dismiss in its entirety in September.

According to the district judge, a successful copyright infringement claim requires that a plaintiff “show a ‘substantial similarity’ between the defendant’s work and protectible elements of his own work.” The court ruled that there was no substantial similarity between the E*Trade videos and Vacchi’s Instagram posts.

In what must have been a blow to Vacchi’s self-regard, the court concluded that his persona was simply a “stock” character. “Apart from the differences in physiques,” the court wrote, “[Vacchi’s summary of his character’s traits] largely captures qualities shared by the E*Trade and Vacchi character. … Of course, this description also underscores how much the character defined by Vacchi reflects the stock character of the older man as playboy.”

Well, sorry, Vacchi, but it appears you are simply no James Bond 007.

Ouch.

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California Bill SB-208 Tackles Pervasive Robocalls

On Sept. 11, 2019, the California State Senate approved the Consumer Call Protection Act of 2019, SB-208. The measure seeks to protect consumers from fraudulent robocalls and enact into law provisions that, despite strong support from Federal Communications Commission (FCC) Chairman Ajit Pai, have not been enacted on the federal level. Read more here.

Baker & Hostetler LLP publications are intended to inform our clients and other friends of the firm about current legal developments of general interest. They should not be construed as legal advice, and readers should not act upon the information contained in these publications without professional counsel. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you written information about our qualifications and experience.