Operating a crisis management firm will take many twists and
turns and a variety of cases. Most clients seeking our services will deal with
the dynamic of "right" versus "wrong". Unfortunately, it will not always be that
simple. Right versus wrong will be decided under the law, not emotion. Here are
3 examples of such cases:
Jason Pierre-Paul of
the New York Giants vs. Adam Schefter and ESPN. Pierre-Paul lost his index
finger in an accident stemming from playing with fireworks. Four months prior to
the accident, the New York Giants placed a $60 million franchise tag on
Pierre-Paul, that he had not signed at the time of the accident. Schefter posted
Pierre-Paul’s medical chart showing the amputated finger on his Twitter feed. Pierre-Paul
is suing Schefter and ESPN for violating his privacy
as well as the Florida medical privacy statute. At the heart of this issue is
privacy. Did Schefter violate privacy
laws by posting the photo? If I were advising Pierre-Paul, I would suggest that
he conduct his own investigation as to how Schefter received the medical records and
sue that person or the hospital. I would have suggested he do that before
filing a lawsuit against ESPN and Schefter. I would not immediately have
suggested suing ESPN. While he is suing under breach of privacy, there is a
deeper ethical issue that can impact many more people. If someone affiliated
with the hospital or doctor’s office is giving out patients' medical charts,
that is a deeper and bigger issue in my opinion. The real question is, “What
does Pierre-Paul want from ESPN?” Was he suing because he thought that once the
accident happened the New York Giants were going to not only remove the
franchise tag from him, but drop him as a player? The Giants not only kept him
as a player, but after a bad season, signed him for another year. In my opinion, he may have thought his football career was
over, and was trying to compensate for future lost wages by suing the massive
media company. The question still needs to be answered, “What does Pierre-Paul
want?”
Rentmeester vs. Nike,
Inc. In 1984, Jacobus Rentmeester, a photographer, took a picture of North Carolina Tarheel superstar Michael
Jordan for Life Magazine. The photo is of Jordan flying through the air on his
way to the basketball hoop. During this time, Nike was negotiating an
endorsement deal with Jordan. Nike reached out to Rentmeester during the
negotiations to borrow the photo. Rentmeester loaned the photo to Nike for
$150.00, under the condition that the photo not be used for “layout or any other duplication.” Months later, Nike
used it again. It was considered breach of their agreement. Rentmeester and
Nike, Inc. agreed to a 2 year limited license, allowing Nike to use it. They
paid Rentmeester $15,000. Three years after the iconic photo was taken, Nike began
using what is now known as the “Jumpman” logo on all of their merchandise, without compensation to Rentmeester. The issue is: Did Nike use the photo taken
by Rentmeester to create the Jumpman logo? The next question is what action should Rentmeester take
to rectify the situation? If Rentmeester sought my advice, my first question would
be, “Did you copyright the photo?” My second question would be, “At what stage
of this process did you involve a lawyer?” My third question to him would be,
“Do you own the copyright on the photo or does Life magazine own it?” Copyright
owners have the exclusive right to prepare derivative works based upon the
copyrighted work. It is my opinion that something in the copyright process was
not done correctly and that is the loophole that Nike found when they created
the infamous Jumpman logo.
Beyonce Knowles Carter
vs. Feyonce, Inc. A company based in Texas trademarked the name “Feyonce.” The
company used the trademark to create a fiancée inspired line of clothing and
mugs. The mugs contain a popular line from Beyonce Knowles’ hit song “Single
Ladies” using the line, “he put a ring on it.” Knowles is suing claiming “Feyonce” infringes on her trademarked name.
I agree with Knowles. If the Texas based company was my client, I would suggest
arbitration. I believe the case is unwinnable because of the combination of the
name of the company and use of the song lyric. My reason for suggesting
arbitration is in hopes that the Texas based company could enter a business
partnership with Knowles and split the profits.
The 3 cases above deal with 3 different forms of legal
liabilities, privacy, copyright and infringement. While on the surface some of these cases do
not seem fair, they deal with what is right under the law. When dealing with
issues that involve one’s privacy or work they have created, those issues
generate a lot of emotion. It is important to look at things from a legal
perspective and not an emotional one. This perspective can save someone a lot
of time and money.
