Legal News: ‘Call of Duty’ creators seek to dismiss defamation suit by ex-Panama dictator Manuel Noriega

(CNN) — The creators of the “Call of Duty” video game franchise on Monday filed a motion to dismiss a lawsuit by former Panamanian dictator Manuel Noriega, who says the 2012 video game “Call of Duty: Black Ops II” has damaged his reputation.

Noriega, 80, is serving a prison sentence in Panama after being convicted of drug trafficking, money laundering and killing political opponents.

Creators of the video game called the lawsuit “frivolous” and filed the motion to dismiss it on the ground that Noriega’s portrayal in the game is protected by the First Amendment.

“What’s astonishing is that Manuel Noriega, a notorious dictator who is in prison for the heinous crimes he committed, is upset about being portrayed as a criminal and enemy of the state in the game Call of Duty. Quite simply, it’s absurd,” said former New York City Mayor Rudy Giuliani, attorney for the video game creator, Activision Blizzard Inc.

“This is a notorious dictator who’s attacking the freedom of speech rights of an American company,” Giuliani told CNN.

Noriega, 80, filed the lawsuit in Los Angeles County Superior Court in July. In it, he argues that his portrayal “as a kidnapper, murderer and enemy of the state” in the 2012 video game damaged his reputation. The company used his image and name in order to make money, the lawsuit says; therefore, he’s entitled to a share of the profits.

“Plaintiff was portrayed as an antagonist as the culprit of numerous fictional heinous crimes, creating the false impression that defendants are authorized to use plaintiff’s image and likeness,” the lawsuit says.

The video game includes historical footage and several real-life characters in Cold War scenarios, including former Marine Lt. Col. Oliver North.  But while North did his own voiceover for the game and acted as an adviser, Noriega said in the July lawsuit that he wasn’t consulted — or compensated — for the use of his likeness.

“Call of Duty” video games take storylines from current headlines, and its characters are based on historical figures, from former Cuban leader Fidel Castro to David Petraeus, the retired general and former CIA director.

For almost two decades, Noriega was a major player in a country of critical regional importance to the United States because of its location on the Panama Canal, the key strategic and economic waterway between the Atlantic and Pacific oceans on the narrow isthmus linking the Americas.  Amid growing unrest in Panama, then-U.S. President George H.W. Bush ordered the invasion of the Central American nation in December 1989, saying Noriega’s rule posed a threat to U.S. lives and property.  Noriega fled his offices and tried to seek sanctuary in the Vatican Embassy in Panama City.  He surrendered in January 1990 and was escorted to the United States for civilian trial.

Noriega was indicted in the United States on charges of racketeering, laundering drug money and drug trafficking. He was accused of having links to Colombian drug lord Pablo Escobar’s notorious Medellin cartel and, in the process, amassing a multimillion-dollar fortune.  He was convicted of drug trafficking and other crimes and served nearly two decades in prison.  In 2010, a French court sentenced Noriega to seven years in prison for laundering 2.3 million euros ($2.9 million) through banks there. He was ordered to pay the money back.  In Panama, where he was convicted of killing political opponents, he has been hospitalized several times since he returned in 2011 to serve out his prison sentence.

YELP Ordered to Turn Over (Alleged) Fake Reviewers

Article By Debra Cassens Weiss, January 2014, ABA Journal:

A Virginia appeals court has ruled Yelp must turn over the identities of seven anonymous reviewers of a carpet cleaning business who did not appear to be actual customers.

The Virginia Court of Appeals found no First Amendment violation when the business, Hadeed Carpet Cleaning, could not find customer records that matched the negative reviews. The Washington Times covered the decision, which was also noted by How Appealing.

“The freedom of speech—and within this, the freedom to speak with anonymity—is not absolute,” the court said in an opinion released Wednesday. “If the reviews are unlawful in that they are defamatory, then the John Does’ veil of anonymity may be pierced.”

One reviewer, “Aris P.” from Haddonfield, N.J., claimed that the price of carpet cleaning was double the quote and that Hadeed was once bankrupt. But Hadeed does not conduct business in New Jersey. Several other allegedly fake reviews complained that the price was double the quote, or criticized Hadeed’s advertising.

A partial dissenter argued that Hadeed could not be sure that the reviewers were not actual customers, and the authors should be protected.

Paul Levy of Public Citizen represented Yelp. “Hadeed really did nothing to justify the need for the identity of the Does in this case,” he told the Washington Times. “It’s going to make it more difficult for the marketplace of ideas to get valuable information about companies.”

Reading Assignment: Defamation and Libel

Hello everyone!  For our next section of Communication Law & Regulation, we’ll be discussing Defamation and Libel.  Please read Hopkins chapter 6, Lisby chapter 2, and be prepared to discuss the following cases:

Beauharnais vs. Illinois (1952)

New York Times vs. Sullivan (1964)*revisiting

Garrison vs. Louisiana (1964)

Brandenburg vs. Ohio (1969)

Williamson vs. State (of Georgia) (1982)

Rosenbloom vs. Metromedia (1971)

Milkovitch vs. Lorain Journal (1990)

Time, Inc. vs. Firestone (1976)

Gertz vs. Robert Welch Inc. (1974)

Curtis Publishing vs. Butts (1967)

Falwell vs. Flynt (1988)

Rosenblatt vs. Baer (1966)

Let me know if you have any questions.  See you in class!

Legal News: Facebook changes “Real Name” policy following social protest

By Jeremy Quittner, Inc.com

Bending to a popular uprising over its real name policy, Facebook announced Wednesday it is reversing course, allowing people to use pseudonyms for their accounts. 

The social network has been under attack in recent weeks for shutting down the accounts of people who use made-up names. While Facebook has had a well-established policy for using real names, its policy was called into question recently as hundreds of drag queens and transgender people have had their accounts suspended in response to the complaints of one Facebook user who remains unknown Facebook said Wednesday.

In an apology to users posted on his Facebook page yesterday, Chris Cox, the social network’s chief product officer, said:

In the two weeks since the real-name policy issues surfaced, we’ve had the chance to hear from many of you in these communities and understand the policy more clearly as you experience it. We’ve also come to understand how painful this has been. We owe you a better service and a better experience using Facebook, and we’re going to fix the way this policy gets handled so everyone affected here can go back to using Facebook as you were.

Cox did not go into specifics about how the policy would change, but said the spirit of its rule has always been to allow for people to use the “authentic name” they use in real life, not their legal name. He added that the policy had been in place to prevent bad actors from impersonating other people or abusing the rules of the community in some other way. Cox said Facebook would improve upon its current policy, and added customer service would change when it flagged accounts. Cox promised customer service would also be less abrupt and more thoughtful.

Competing social network Google Plus changed its real name policy this summer after complaints from political activists and others. Often activists, and many in the transgender community, choose pseudonyms to protect themselves in communities where they are threatened with imprisonment or physical violence. And for many in the drag community, their drag names are also their performance personas, which are effectively their money-making brands.

The controversy over Facebook’s real name policy has caused something of an exodus to the competing network Ello in recent days. Ello, which has no ads and does not require members to use real names, was created by entrepreneur Paul Budnitz and friends about a year ago, and it has been experiencing sign up rates of about 45,000 people an hour for the last couple of days.

Budnitz said Thursday he thought Facebook’s decision to change its real name policy was a “great” development:  “Facebook makes its money by reading your posts and tracking what you do, and selling that data to advertisers,” Budnitz told Inc. “The more they know about you, the more money they make, and if they know your real name, it’s more valuable to them.”

Legal News: Author Sues Disney for $250M, Claiming “Frozen” Copied Her Life Story

By Bryan Llenas and Lucia I. Suarez, FOX News Latino

A Peruvian author is claiming Disney plagiarized the story from her autobiography, “Yearnings of the Heart” – not from Hans Christian Andersen’s fairy tale, as the company has said – and she wants her money.  Isabella Tanikumi, whose birth name is Amy Gonzalez, has filed a lawsuit for copyright infringement worth $250 million against Disney.

“These books deal with the story of two sisters who have tragedies, romances, conflicts, isolation and loneliness and there are significant similarities with your movie.”- Isabella Tanikumi

The little-known author claims in the lawsuit that Disney copied the story, characters and plots of her 2010 novel and turned into “Frozen” — the studio’s highest grossing animated movie of all time.  According to Amazon’s synopsis of the autobiography, it is a “compelling, introspective account of the life of Isabella Tanikumi, who takes her readers on a journey through various phases of her remarkable life – from her family’s survival during the devastating earthquake of 1970 in Huaraz, Peru, to the trials of overcoming the reaches of her intellect while facing the tragic and untimely death of her beloved older sister Laura.”  In the lawsuit, filed last week in the District Court of New Jersey federal court, Isabella claims Disney plagiarized her own life story in 18 different ways.

“I recently purchased and viewed your movie ‘Frozen’ with my daughter and was appalled at what I observed,” Isabella wrote in an accompanying text to the lawsuit, of which Fox News Latino got a copy.  Her published and copyrighted work, she says, deals with “the story of two sisters who have tragedies, romances, conflicts, isolation and loneliness and there are significant similarities with your movie.”  Among the similarities, according to Isabella, her story begins in the town of Huaraz “at the base of snow-covered mountains where she lives with her parents and sister Laura.” Frozen too takes place in a village (Arendelle) at the foot of snow-covered mountains — where Elsa and Anna, two sisters, live with their parents.  At the heart of Isabella’s claim is that Disney copied her relationship with her older sister Laura. The lawsuit claims that, just like Frozen’s Elsa and Anna, Laura and Isabella had opposite hair colors, both had horses and both shared a deep love for one another.  A critical part of Frozen’s movie plot is when Elsa accidently hurts Anna with her wintry magic, and a troll king heals her removing her memory of the whole incident. Well, that too, according to Isabella is not an original Disney idea.  Isabella claims she has no memory of an accident caused by her sister that did severe damage to Isabella’s face after falling in hot custard. Isabella had to cover up her facial injuries with concealing creams and had terrible fears of going out. In “Frozen,” Elsa had to cover up her hands to conceal her magic and is afraid of going out. Because of the accidents and subsequent “defects,” both Isabella and Elsa become defensive out of embarrassment and fear.  Isabella also claims her two romantic interests – Hans and Christoff – inspired “Frozen”‘s two male characters Hans and Kristoff which had a romantic interest in Anna. Also like Isabella, Anna falls in love with a dark-haired tall and fair man (Prince Hans of the Southern Isles).  Finally, like in “Frozen,” when Anna dies in a severe accident, Laura also died in a severe accident — the only difference is Anna comes back to life in the movie.

Disney’s “Frozen” has grossed an astronomical $1.2 billion at the global box office, and its lead song “Let It Go,” performed by Idina Menzel, gave songwriter Robert Lopez the coveted EGOT (Emmy, Grammy, Oscar and Tony) wins.  But that hit soundtrack, apparently, is plagiarized too.  Isabella claims that, “through various sources, I am aware that writers in the music industry have taken portions of my stories to develop songs for popular artists and these writers may have corroborated with the writers of ‘Frozen’.”  There is no mention of a talking snowman in this lawsuit. For now, Olaf is safe.

Legal News: Can you trademark the word “trademark” ?

By Keely Herrick, IP Attorney, Parks Wood LLC

With the recent opening of a store called Trademark in New York City featuring clothing by Pookie and Louisa Burch, the designers now have an opportunity to register the word “Trademark” as a trademark. While this may seem counter-intuitive, the U.S. Patent and Trademark Office has allowed an entire family of trademark applications filed by the sisters for the word TRADEMARK covering a wide range of goods, from candles to clothing. The introduction of the brand opens up an interesting opportunity to revisit what allows a word to function as a trademark.

A Trademark By Any Other Name…

Primarily, the purpose of a trademark is to serve as a source identifier. When you see the terms CHANEL, DKNY, or CALVIN KLEIN placed on clothing and apparel, you instantly are aware that a particular company and entity stands behind these products, and you associate a certain standard of quality and customer service with the source of the products. Furthermore, you make your purchasing decision at least in part based upon your opinion of the source of the products.

Generic terms cannot function as trademarks. Therefore, “hat” cannot be a trademark for hats, and “shoe” cannot be a trademark for shoes. If someone was allowed to claim exclusive rights in all uses of either of these terms for the respective products, the rest of the industry would be at a disadvantage as it would be unable to use a necessary term in referring to the products. Does it follow, then, that “trademark” cannot be protectable as a trademark? Not necessarily.

Apples and Oranges (and Trademarks)

Consider the term APPLE, a well-known trademark for computers and related products. This is what is known as an arbitrary trademark, where a term that has a defined, generic use in relation to one type of products (here, apples, and apple-flavored foods) can function as a trademark for goods which are unrelated to the known definition of the term. Similarly, TRADEMARK has a defined use as a source-identifier: a symbol, word, or phrase established by use as representing a company or product. However, TRADEMARK is not a defined item of clothing like a shoe or a hat.

If the Burch sisters obtain a trademark registration for the term TRADEMARK for use in connection with clothing, does this mean that all other fashion labels have to remove the term TRADEMARK from their labels and hangtags? Is Louis Vuitton no longer allowed to refer to its LOUIS VUITTON trademark? Of course not. The term will still be available for others to use in a generic sense, and it can be included in registrations obtained by others, such as a current registration for a design mark including the terms METRO KIDS COMPANY EST. 1989 TRADEMARK, owned by Parque Industrial Taveiro for use with clothing. In that registration, the owner is using TRADEMARK in a generic sense, and it had to disclaim any claim of exclusivity to the term outside of the specific design as registered.

Alas, poor TRADEMARK…

What, then, do the Burch sisters gain from registering TRADEMARK as a trademark? Essentially, no other company should be able to refer to their clothing and apparel line as TRADEMARK, alone, without any other additional terms. While the term TRADEMARK can be included in other entities’ marks, as described above, it shouldn’t be the dominant portion of the mark visually. As a practical matter, even though the applications cover the mark in block letters, they would have the greatest chances of success in objecting to use of the term TRADEMARK in a stylization similar to the block logo currently in use at their store.

The step-daughters of Tory Burch were apparently inspired by the concept of creating a “signature look” or a trademark style for their clients in developing the brand name. Accordingly, this mark is arguably in the suggestive category of trademarks in that it indicates a particular quality of the clothing, that it will help the wearer to stand out. It will be interesting to see how the TRADEMARK trademark develops over time, and it’s another example of the intricate study of language that makes intellectual property such a fascinating area of law, especially for former English majors.

Reading Assignment: Intellectual Property

Hello Everyone!  Following the second exam, we’ll be discussing Communication Law and Intellectual Property (patents, trademarks, copyright).  Please read Hopkins chapter 13, and be prepared to discuss the following cases:

Feist Publications v. Rural Telephone Service (1991)

Eldred v. Ashcroft (2003)

Golan v. Holder (2012)

Community for Creative Nonviolence v. Reid (1989)

Harper & Row v. National Enterprises (1985)

Campbell v. Acuff-Rose Music (1994)

Cambridge University Press v. Carl Patton (2014)

White Smith Music Publishing Company vs. Apollo Company (1908)

Sony Corp. v. Universal City Studios, Inc. (1984)

MGM v. Grokster (2005)

Thanks, and see you in class.