Intellectual Property & The Law

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.