Right of Publicity

• Cause of action against someone who makes unauthorized commercial exploitation of one's name, likeness, voice or other indicia of identity
• Trimmed by:
• 1. First Amendment (takes huge chunk out of actionable right of publicity infringement)
  2. Copyright preemption (note - if you take a photo, you still need to get permission from subject in order to place in ad)
  3. Judge nullification (judge finds intellectually deceivable way/general uncomfortableness = judge puts own spin on law)
• States have been allowing post-mortem right of publicity
• False endorsements - successfully protected (can't use image in advertisement without permission (Obama wearing Weatherproof jacket))
• Music allowed if permission from record company; photos not allowed with mere permission of photographer
• Can't put image, etc. on merchandise, but can use in magazines, etc. (1st Amendment)
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• Right of Privacy as tort (four different torts)
• 1. Intrusion upon solitude (peeping Tom);
  2. Public disclosure of embarrassing facts;
  3. False light (misrepresenting something about person);
  4. Right of publicity

Moral Rights

• Work is a part of the artisit - if you infringe, you are infringing on heart of artist (France)

Undeveloped Ideas

• Mostly in toy/entertainment industry
• Property-type theory
• • Breach of confidence
  • Breach of fiduciary duty
  • Fraud
  • Breach of express contract
  • Breach of implied-in-fact contract
  • Breach of implied-by-law contract

Misappropriation ("passing off"; "Hot news")

• Elements
• 1. P generates or gether information at a cost
  2. The information is time sensitive
  3. D's use of the info constitutes "free riding" on P's efforts
  4. D is in direct competition with a product or service offered by P
  5. The ability of other parties to free ride on the efforts of P or others would so reduce the incentive to produce the product that its existence or quality would be substantially threatened
• Note: misappropriation doctrine does not have continuing validity b/c it is now common to credit sources
• • Sportscasting - it is misappropriation to do radio play-by-play of game, but OK to announce scores, etc.

1. Globalized IP has a ratcheting effect - keeps getting tighter - more expansive and broader (IP law becomes inflexible)
2. Best of Europe/Best of USA system - minimums that French/European model wants to US model wants - get more coverage all around, and don't get less coverage of a particular type of IP
3. Makes things easier by helping with procedures
4. National Treatment - everyone (foreign citizens) must be treated as well as domestic citizens (don't have to treat domestic citizens as well as foreign)
5. Substantive minima imposed about duration/scope (must have at least life + 50 years copyright term...can be longer)
6. Relation to world trade and north v. south Issues (rich v. poor)

Design Patents (different from a utility patent)

1. Requirements: (1) novelty, (2) originality, (3) non-obviousness, (4) ornamental, not dictated by function, (5) on a functional articles, and (6) enabling disclosures
2. Priority based on foreign applications is differerent for design patents than utility patents
3. Term is 14 years from issuance (different from utility patent)
4. Design can include configutation/shape of article, surface ornamentation, or a combination or shape and surface ornamentation
5. Much less commercially valueable than utility patents; however, a design patent may allow protection for a short time, which allows time to create secondary meaning through selling products, and enables one to then receive trademark protection (while in the mean time one receives a patent)

Semiconductor Chip Protection Act (1984)

1. Protects original mask works for making semi-conductor chips
2. Must be registered with the Copyright Office for protection to commence
3. Duration of protection in 10 years

Vessel Hull Design Protection Act (1998)

1. Requirements: (1) subject matter must be vessel-hull design, (2) must be embodied in an actual vessel hull, and (3) staple or commplace design cannot be protected
2. Must be registered with Copyright Offive for protection to commence
3. Public Bar: Application for registration must be filed no later than two years after hull was publicly exhibited, or distributed or offered to public for sale with the design owner's consent
4. Duration of protection is 10 years

Plant Protection Act (1930)

1. Requirements: (1) Subject matter must be an asexually reproduced plant (included macro fugi, but not bacterium), (2) distinct in that is must be clearly distinguishable from other varieties, and (3) new
2. Can be invented or discovered, if discovered in a cultivated area
3. Patent covers the entire plant; however, there is no infringement when fruit, flowers, seeds, etc. are sold
4. Somative mutants are non-infringing of the parent plant patent and are potentially separately patentable
5. Duration of protection is 20 years from filing of application
6. In practice, an infringing plant must be a vegetative descendent of the patented plant

Plant Variety Protection Act (1970)

1. Requirements: (1) subject matter is secually reproducing plant (not bacteria, fungi), (2) new, (3) distinct, (4) uniform and stable, from generation to generation characteristics must appear throughout each generation
2. Protects against creation of derivative plant lines
3. Allows farmers to save and plant seeds (otherwise, seed sales are infringing)
4. There is a research exemption which allows use of breeding to develop a new variety
5. Covers first-generation hybrids
6. Duration of protection is 20 years generally, and 25 years for trees and vines