Querrey & Harrow's E. Leonard Rubin
Eckert Seamans' Roberta Jacobs-Meadway
Michael Jackson's estate will keep busy protecting IP rights
June 26, 2009
It's a copyright and trademark nightmare waiting to happen.
Intellectual property lawyers are anticipating a slew of legal battles involving the exploitation of Michael Jackson's name, music and image, largely by scammers seeking to capitalize on the pop star's life and death.
Many opportunists are already out there, they note, hawking T-shirts on street corners and selling other Jackson memorabilia on Web sites claiming to be memorializing Jackson's name. And given his megastar status, attorneys note, anything Jackson that turns up on the Internet, TV or in print will be subject to a lawsuit.
Posters, key chains and T-shirts bearing his image could trigger copyright and trademark infringment claims, they say. Bootleg videos and CDs of Jackson's older hits will result in copyright infringement lawsuits. Even the infamous white glove and moonwalk could turn up in a choreography infringement lawsuit, said Roberta Jacobs-Meadway, a trademark and copyright attorney in the Philadelphia office of Pittsburgh's Eckert Seamans Cherin & Mellott.
"I think you're going to see some interesting litigation involving how people are going to use his name, image and music," said Jacobs-Meadway, who believes the Jackson estate will especially be motivated to protect Jackson's image through litigation.
"With an estate that is facing a lot of debt, there's going to be an incentive to take action, just as there's going to be a commercial incentive on the part of the people who want to either pay tribute, show their devotion or make a buck," Jacobs-Meadway said.
It's those scammers — the opportunists — who will really keep the Jackson estate busy, said IP law attorney E. Leonard Rubin, of Chicago's Querrey & Harrow.
"It's the proliferation of scoundrels that has to be paid attention to, and that may be a full-time job," Rubin said. "Trying to track down the people who will attempt to exploit Michael Jackson's memory unlawfully is going to be a gigantic job."
Rubin compared Jackson's death to that of Elvis Presley, which, he said, turned Elvis exploitation into a sport. As with Presley's estate, the Jackson estate will be equally busy trying to protect Jackson's intellectual property rights and rights to publicity from being robbed by the masses.
Rubin noted that California residents who exploit Jackson's name are more likely to face liability because California — which is where Jackson resided — has a right-to-publicity law that says the name or likeness of a celebrity cannot be used commercially for endorsing products.
That means a California resident cannot stand on a corner and sell Jackson T-shirts without having obtained rights to do so, he said.
But right-to-publicity laws vary state to state, Rubin added. For example, New York recognizes the right of publicity, but that right doesn't survive following the death of a celebrity. That means New Yorkers can likely sell Jackson T-shirts without fear of liability, he said.
In some cases, he said, the exploitation of Jackson's image or name might not be worth an expensive lawsuit, such as going after a small-time entrepreneur hawking T-shirts on a corner. it's going to be tough to find out who made them, he said, and going after the seller won't be worth it.
But then there will be cases where lawsuits will be inevitable.
"I expect that many entrepreneurs will attempt to memorialize Michael Jackson by trying to sell all sorts of products that carry his name, or his likeness, such as the names of his various big hit albums, like Thriller," he said. "And some of them will wind up getting sued."
Tresa Baldas can be contacted at tresa.baldas@incisivemedia.com.
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