What do Elly May Clampett and Lady Gaga have in common? … Answer: A desire to be in control of how their images and names are used.Thursday, June 2nd, 2011
Elly May is the role played over two hundred and sixty-four times by Donna Douglas in 1960′s series, The Beverly Hillbillies; and, Douglas has sued Mattel in Louisiana for making the “Elly May” doll in the Barbie Doll line. While Mattel claims to have obtained all necessary licenses to make the product under necessary channels, Douglas asserts that she was never consulted and that the infringement creates the false public impression that Ms Douglas has endorsed the doll. Douglas claims that she still makes an income from appearances; and, that the 264 episodes are in syndication and still being broadcast throughout the world.
Douglas asks for $75,000 in damages against Mattel.
Other celebrities have won such cases based on a clause of the Trademark Act of 1946 stating that it is illegal to use an image or likeness to make it appear the person in endorsing a product. Such celebrities include Vanna White, the wheel turner in ‘Jeopardy’ as well as Tom Waits and Bette Midler for sound-alikes. Waits sued Frito-Lay Inc. in 1992 and Midler sued Ford Motor Co. in 1988. The latter two differ in that both companies had asked the respective singer to do a song for a commercial, and when the singer refused, the company proceeded to hire a sound-alike performer.
Below are photos from the packaging. The front package alone might not trigger liability but the two side panels and backsides of the package clearly identify Douglas. Liability becomes more likely as the connection gets stronger. In her suit, Douglas says that she “continues to make public appearances in association with” her character. Mattel introduced the “Elly May” Barbie doll in December 2010, and even uses Douglas name in promotional materials for the doll. A settlement in the Elly May case looks to be prudent, especially given the amount demanded.
Lady Gaga, on the other hand, has conditioned that any photographer who asks for a press pass to Lady Gaga’s performances agree that copyright in all photographs taken during the performance shall be owned by Madonna. Here is the agreement. http://images.tbd.com/entertainment/gaga-release.pdf Not only is copyright in photographs not yet taken (expectancies) transferred, but the photographer agrees to take down from websites after four months.
This automatic transfer of copyrights is a theme in the medical arena as well. Some doctors are conditioning their providing of services upon the patient agreeing that any commentary that the patient writes is assigned to the doctor. This facilitates a speedy take down of any review that a doctor does not agree with… which some believe is unenforceable; and others believe is effectively a gag-order. The Santa Clara University High Tech Law Institute and The Samuelson Law, Technology & Public Policy Clinic at the University of California Berkeley School of Law have begun a website to address this practice: http://doctoredreviews.com/
While fair use in copyright keeps expanding, the pressure both for control of copyright content and for commercial activities using copyright content to pay full freight is stepping up.