Supermodel Jelena Noura “Gigi” Hadid was not the first celebrity to be photographed by paparazzi and then to post the resulting photo to social media, nor was she the first to be subsequently sued for copyright infringement for doing so. Other celebrities, including Jennifer Lopez and, most recently, Victoria Beckham, have made news for the same situation.

This trend falls into an interesting intersection of two significant tenets of law: a celebrity’s right of publicity in their own image and a photographer’s right to copyright their artistic work. The district court dismissed the case due to a lack of a copyright registration. In addition to that defense, though, her attorneys also raised the defenses of fair use and implied license. The second may have begun paving the way for future legal challenges to clarify these issues by raising a novel argument—implied license—alongside the more typical defense of fair use.


Continue Reading #StrikeAPose #CopyrightInfringement

With more and more children becoming technologically savvy, parents are having to rely more heavily on laws such as the Children’s Online Privacy Protection Act (“COPPA”) to shield their children’s information. The FTC recently issued a warning letter to a Ukraine-based company, Wildec LLC (“Wildec”), for allowing children under the age of thirteen to access its dating apps—alleging a potential violation of COPPA and the FTC Act.

A little background on COPPA: the FTC’s COPPA Rule prohibits companies from collecting, using, or sharing personal information from a child, which is defined as an individual under the age of thirteen, without the parent’s verifiable consent. In addition, companies must also provide a notice on its website stating what information is collected as well as any disclosure practices for such information.

Wildec’s dating apps collected an array of information from its users, such as email addresses, photographs, dates of birth, as well as a user’s real-time location data. Although the app’s privacy policy prohibited users under the age of thirteen, the FTC staff found that users who indicated they were under thirteen were not prevented from accessing and using the apps, and staff were able to locate individuals that indicated they were as young as twelve. In addition, the FTC noted in its warning letter that “facilitating other users’—including adults’—ability to identify and communicate with children—even those 13 or over—poses a significant risk to children’s health and safety.” Following the allegations, the apps were swiftly removed from Google Play and Apple’s App Store.


Continue Reading FTC Warns Ukraine Company: You Can’t Let Kids Use Your Dating Apps

In every contract parties try to limit their liability. As a result, drafters put in very broad limitations of liability, which, up to a point, are fine and should be used. However, the problems arise when an entity tries to draft a limitation of liability that is so broad that it goes against public policy and state statutes. This is what recently happened in the case of Rossi v. Photoglou (Court of Appeals of California, Fourth District Division Three [9/29/2014]).

The case dealt with a cast member from “The Real Housewives of Orange County,” Gretchen Rossi, and her claim that her former friend Jay Photoglou was harassing and stalking her. At the trial level, Rossi was successful and recovered more than $500,000 in compensatory and punitive damages. The court dismissed the counterclaim by Photoglou against Rossi for libel, slander and invasion of privacy. It based the dismissal on the release signed by Photoglou which shielded not only the producers of the program, but also other cast members from liability. However, the Court of Appeals did not agree and reversed that finding because it held that all three of his claims involved intentional torts, and courts have often held that one cannot waive liability for intentional torts.


Continue Reading Too Much of a Good Thing Can Hurt You

Over the past couple of months, we have been waving the caution flag in the air while attempting to warn businesses about the potential liability for violations under the TCPA.  In our previous posts, we noted the numerous consumer lawsuits that have been filed against businesses throughout the country, a list which continues to grow on a weekly basis (see our TCPA Update for more recent filings).  On May 19, 2014, the Federal Communications Commission (“FCC”) announced a record $7.5 million fine against Sprint Corp. (“Sprint”) in a settlement for violations of the “Do-Not-Call” law, which should send a clear message to telemarketers that class actions are not the only threat to a telemarketer’s bottom line.  Indeed, the FCC’s statement on the settlement explicitly states:

We expect companies to respect the privacy of consumers who have opted out of marketing calls.  When a consumer tells a company to stop calling or texting with promotional pitches, that request must be honored.  Today’s settlement leaves no question that protecting consumer privacy is a top enforcement priority.

First, a brief refresher of the “Do-Not-Call” law’s history and basic statutory framework may be helpful.  Under 15 U.S.C. § 6151, the “Do-Not-Call Registry Act of 2003” went into effect in 2003, establishing a national registry for consumers to opt out of telemarketing calls for free.  The statute formally ratified the FTC’s do-not-call registry provision of the Telemarketing Sales Rule, 16 C.F.R. § 310.4(b)(1)(iii).  The “Do-Not-Call Implementation Act of 2003,” 15 U.S.C. § 6152 et seq. authorized the FCC to issue do-not-call regulations under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq.  As a result, in June 2003, the FCC supplemented its TCPA rules to also include a national Do-Not-Call list.  As a result, businesses must comply with both FCC and FTC regulations when making telemarketing calls.  Note that the FCC Guide on Unwanted Marketing Calls indicates the law applies only to personal landline and wireless phones—not business phones.  The “Do-Not-Call” law also exempts calls made with express prior written consent, calls made by nonprofit organizations, or calls from a person or organization with an established business relationship. 
Continue Reading Caller Beware: FCC’s Record “Do-Not-Call” Fine Highlights Liability Under TCPA

You don’t tug on Superman’s cape.  You don’t spit into the wind.  You don’t pull the mask off that old Lone Ranger.

Thanks to the late Jim Croce, you know all that.  I know it, too.  And I’m sure the people at Jewel Food Stores know it.

But what Jewel didn’t know is that you don’t mess around with Mike – meaning basketball great Michael Jordan — by running a full-page ad in Sports Illustrated congratulating him on his entry into the Basketball Hall of Fame without paying the guy.  Because if you do, Mike will sue you for $5 million.  
Continue Reading Craig Ehlo knew it, and now Jewel Food Stores knows it: you don’t mess around with Mike