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Fundamentally, the “right of publicity” is the right of an individual to control any commercial use of his or her name, image, or some other aspects of one’s identity.

The right of publicity is principally a state-based right in the United States, meaning the parameters of the “right” and the extent to which it can be enforced is different in each state. There are some states that have provided this particular right by way of statute. In states which do not have legislation to dictate the right of publicity, the surrounding legal jurisprudence is governed by way of Court precedence and common law. The right of publicity can be passed on to a person’s heir after death since the right is generally considered as a property right instead of a personal one. The right of publicity can also be referred to as personal or publicity rights.

Notably, while there is not explicitly a Federal law which specifically recognizes a right of publicity, Federal legislation does exist which protects against unfair competition, false endorsement and false association. Various invocations of these laws may be appropriate when dealing with rights of publicity issues.

Recording IP Registrations with Customs

“Recording IP registrations with customs” refers to the process of registering your intellectual property (IP) rights, such as trademarks and copyrights, with customs or border protection authorities in a specific country. This registration allows customs officials to identify and take action against the importation or exportation of goods that infringe upon your registered IP rights. Here’s a breakdown of the concept:

  1. Identify Relevant IP Rights: Before proceeding, determine which of your intellectual property rights you want to register with customs. This could include trademarks, copyrights, or other IP assets that are vulnerable to counterfeiting or infringement.
  2. Customs Registration: After identifying the IP rights you want to protect, you can submit information about these rights to the customs or border protection agency of the country where you seek protection.
  3. Information Provided: When registering with customs, you typically provide details about your registered IP rights, such as trademark images, copyright registrations, and other relevant information. This helps customs officials identify potentially infringing goods during inspections.
  4. Border Enforcement: Once your IP rights are registered with customs, border protection authorities are empowered to enforce your IP rights at the border. This means that customs officials can identify goods that bear IP rights similar to yours and are being imported or exported without proper authorization.
  5. Monitoring and Detection: Customs officials use the information you’ve provided to monitor shipments and detect counterfeit or infringing goods. They may inspect goods that are suspected of bearing counterfeit trademarks or copyrighted material.
  6. Seizure and Actions: If customs officials identify goods that appear to infringe on your IP rights, they can seize these goods and take appropriate actions. This might involve contacting you as the IP rights holder and working with you to determine the appropriate course of action, which could include destruction of the infringing goods or legal proceedings against the infringing parties.
  7. Deterrence: Recording your IP registrations with customs acts as a deterrent to counterfeiters and infringers who might attempt to import or export counterfeit goods. The knowledge that customs authorities are actively monitoring and taking action against IP rights infringements can discourage such activities.
  8. International Protection: While customs registration is specific to a particular country, similar mechanisms might exist in other countries. It’s important to explore customs recording options in countries where you anticipate potential infringements.

Recording IP registrations with customs is an important step to proactively protect your intellectual property rights from counterfeiting and infringement at national borders. It helps preserve the value of your IP assets and maintain the integrity of the marketplace. Consulting with legal experts experienced in intellectual property law can guide you through this process effectively.

Counseling on Design Patents and Rights

A legal professional with expertise in intellectual property law can provide valuable counsel on design patents and rights. Design patents protect the unique visual appearance of a product, and legal experts can offer guidance on various aspects related to design patents. Here’s how they can help:

  1. Educating on Design Patents: A legal professional can explain the concept of design patents, including what they cover, the scope of protection, and the benefits of obtaining design patent rights.
  2. Prior Art Search: Before filing a design patent application, legal experts can conduct a thorough search to identify existing designs that might be similar to yours. This helps determine the uniqueness of your design and the likelihood of obtaining a design patent.
  3. Design Patent Application Preparation: Legal professionals can assist in preparing and filing a design patent application with the relevant intellectual property office. This includes drafting the application, creating drawings or images of the design, and ensuring that all necessary information is included.
  4. Application Filing Strategy: They can help develop a strategy for filing design patent applications, considering factors such as the jurisdictions where protection is sought and the timing of filing to maximize rights.
  5. Responding to Office Actions: If the patent office issues an office action with objections or requests for clarification, a legal professional can assist in preparing a well-structured response to address these issues.
  6. Infringement Analysis: Legal experts can analyze whether a product or design might infringe on an existing design patent. This analysis helps you understand the potential risks and take appropriate actions to avoid infringement.
  7. Licensing and Assignment Agreements: If you own a design patent, a legal professional can help draft licensing or assignment agreements that outline the terms for others to use or acquire your design rights.
  8. Portfolio Management: For businesses with multiple design patents, legal professionals can help manage and maintain the portfolio, ensuring that renewal deadlines are met and rights are properly protected.
  9. Enforcement of Design Patents: In case of design patent infringement, a legal professional can guide you through the process of enforcing your rights. This could involve sending cease-and-desist letters, negotiating settlements, or pursuing legal action.
  10. International Considerations: If you’re seeking design patent protection internationally, legal experts can help navigate the intricacies of different jurisdictions’ design patent laws and filing requirements.
  11. Due Diligence for Transactions: During mergers, acquisitions, or other business transactions, legal professionals can perform due diligence to assess the value and validity of design patents.
  12. Strategic Advice: Legal professionals can provide strategic advice on how to leverage your design patents to strengthen your brand, market your products, and maintain a competitive advantage.

Engaging a legal professional with expertise in design patents ensures that you make informed decisions about protecting your unique designs, understanding your rights, and navigating potential challenges effectively.

Character Names, Likeness, and Rights

A lawyer can provide valuable assistance in protecting and managing trademark character names, likeness, and rights. Characters can be an integral part of branding, entertainment, and creative works, and legal experts can help ensure that these aspects are properly safeguarded. Here’s how a lawyer can help:

  1. Trademark Registration: Lawyers can guide you through the process of registering character names as trademarks. They’ll conduct thorough searches to ensure the name is available, prepare the trademark application, and manage the filing process.
  2. Character Likeness Licensing: Legal professionals can help negotiate and draft licensing agreements for the use of a character’s likeness. This could include agreements with manufacturers, advertisers, and entertainment companies.
  3. Copyright Protection: If the character’s likeness or portrayal is protected by copyright, lawyers can help register and enforce those rights, preventing unauthorized use, reproduction, or distribution.
  4. Personality Rights and Likeness: Lawyers can advise on personality rights and likeness protection, especially in cases involving real people whose likeness is used without consent.
  5. Drafting Agreements: Lawyers can draft agreements that outline the terms and conditions for using character names, likenesses, or images in various contexts, such as movies, merchandise, advertising, and endorsements.
  6. Entertainment Contracts: Legal experts can assist in negotiating contracts for actors, performers, and creators to ensure proper compensation and protection for character rights.
  7. Enforcement and Infringement: In cases of unauthorized use or infringement of character names or likenesses, lawyers can help you enforce your rights by sending cease-and-desist letters, negotiating settlements, or pursuing legal action.
  8. Portfolio Management: If you have a portfolio of characters, lawyers can help manage and protect those assets by monitoring potential infringements, renewing trademark registrations, and maintaining documentation.
  9. Branding and Licensing Strategies: Lawyers can advise on strategies to maximize the value of character names and likenesses through licensing, branding, and merchandising.
  10. Defending Against Claims: If you’re accused of infringing on someone else’s character rights, lawyers can assess the situation, advise on potential defenses, and represent you in negotiations or litigation if needed.
  11. International Considerations: For characters with international appeal, lawyers can guide you through the process of protecting and enforcing character rights in different jurisdictions.
  12. Mediation and Dispute Resolution: In case of disputes involving character rights, lawyers can facilitate mediation and alternative dispute resolution methods to reach amicable resolutions.

Engaging a lawyer experienced in character name, likeness, and rights issues is crucial to ensure that your creative assets are legally protected, your rights are enforced, and your business interests are safeguarded.

First Amendment Issues and IP Rights

A lawyer can play a significant role in navigating the intersection of First Amendment issues and intellectual property (IP) rights. Balancing freedom of expression with IP protection can be complex, and legal professionals with expertise in both areas can provide valuable guidance. Here’s how a lawyer can assist with First Amendment and IP rights matters:

  1. Legal Consultation: A lawyer can assess the specific situation and provide advice on how First Amendment rights and IP rights interact. They can help you understand the boundaries and limitations of each area of law.
  2. Preventive Guidance: Legal experts can help you structure creative works or content in a way that minimizes the risk of infringing on others’ IP rights while still respecting First Amendment rights.
  3. Fair Use Analysis: Lawyers can evaluate whether a particular use of copyrighted material qualifies as fair use under copyright law. Fair use allows limited use of copyrighted material for purposes like criticism, commentary, news reporting, and education.
  4. Parody and Satire Protection: Legal professionals can assist creators in understanding the legal implications of creating parodies or satirical works, which may involve balancing First Amendment rights with potential copyright or trademark issues.
  5. Defending Against IP Claims: If you’re facing an IP claim that involves First Amendment considerations, a lawyer can help you mount a defense based on free speech rights while addressing any legitimate IP concerns.
  6. Prior Restraint Considerations: Lawyers can provide guidance on situations involving potential prior restraint, where a party tries to prevent the publication or dissemination of certain content due to alleged IP infringement.
  7. Trademark and Expression: Legal experts can help you understand the nuances of using trademarks in expressive works while avoiding confusion or dilution claims.
  8. Licensing and Permissions: Lawyers can help negotiate licensing agreements that balance IP rights and First Amendment rights when using copyrighted or trademarked material in creative works.
  9. Public Domain and Free Expression: Legal professionals can help creators identify content that is in the public domain, which can be used more freely in expressive works without running into IP conflicts.
  10. Counseling on Censorship Issues: Lawyers can advise on potential censorship issues involving government actions that may infringe on First Amendment rights related to IP use.
  11. Litigation and Dispute Resolution: If disputes arise involving IP rights and free speech, lawyers can represent your interests in negotiations, mediation, arbitration, or litigation.
  12. Policy Advocacy: Lawyers with expertise in both areas can contribute to discussions around IP laws and First Amendment protections, advocating for a balanced legal framework that respects both creative expression and IP rights.

Navigating First Amendment issues in the context of IP rights requires a nuanced understanding of both legal areas. Engaging a lawyer experienced in intellectual property law and First Amendment law ensures that your rights are protected while respecting the rights of others and the broader legal landscape.

Security Interests for IP Rights

Security interests for intellectual property (IP) rights refer to legal arrangements in which IP assets are used as collateral to secure a loan or financial obligation. In such arrangements, the IP rights serve as a form of guarantee for the lender in case the borrower defaults on the loan. Here’s an explanation of security interests for IP rights:

  1. Collateralized IP Assets: When a borrower seeks a loan or financing, they might offer their IP assets, such as patents, copyrights, trademarks, or trade secrets, as collateral. These IP rights hold inherent value that can be used to secure the loan.
  2. Creation of a Security Interest: To establish a security interest, a legal agreement is typically drafted, which outlines the terms of the loan, the IP assets being used as collateral, and the rights and responsibilities of both parties.
  3. Security Agreement: The security agreement is a contract that specifies the borrower’s obligations, the lender’s rights in case of default, and the terms of releasing the security interest once the loan is repaid.
  4. Perfection of the Security Interest: To ensure that the lender’s claim to the collateral is recognized and enforceable against other creditors, the security interest must be perfected. This might involve filing a UCC-1 financing statement (under the Uniform Commercial Code) or adhering to specific requirements outlined by IP registries.
  5. Enforcement and Default: If the borrower fails to fulfill their loan obligations, such as making payments, the lender can take steps to enforce the security interest. This might involve seizing and selling the IP assets to recover the outstanding debt.
  6. Valuation and Appraisal: Prior to creating a security interest, the IP assets may need to be valued to determine their worth. This valuation helps establish the maximum loan amount that can be secured by the IP rights.
  7. Due Diligence: Lenders often conduct due diligence to assess the quality, ownership, and potential value of the IP assets being offered as collateral. This involves evaluating the strength of the IP rights, any existing encumbrances, and the potential for infringement.
  8. Terms and Conditions: The security interest agreement outlines the specific conditions under which the lender can exercise its rights to the IP assets, such as in the event of default or non-payment.
  9. Release of Security Interest: Once the borrower fulfills their obligations, the lender releases the security interest, removing the encumbrance on the IP assets. This might require filing a release or termination statement.
  10. IP-Specific Considerations: Different types of IP rights have varying procedures for creating, perfecting, and releasing security interests. For instance, patents might require notifying the relevant patent office, while trademarks could involve registration with the appropriate trademark office.

Security interests for IP rights provide a mechanism for businesses to leverage their intangible assets to secure financing. However, it’s essential to navigate these arrangements carefully, as they involve complex legal, financial, and valuation considerations. Consulting legal professionals and financial experts familiar with intellectual property law and secured transactions can help ensure that these arrangements are properly structured and executed.

Entertainment & Publication Title Search and Clearance

A lawyer can provide valuable assistance in conducting entertainment and publication title searches and clearances. Ensuring that titles for movies, books, music, and other creative works are unique and do not infringe on existing rights is crucial to avoid legal disputes. Here’s how a lawyer can help with this process:

  1. Title Search and Analysis: Legal professionals can conduct comprehensive searches to identify existing titles that might be similar to the one you intend to use. This involves searching various databases, trademark records, domain names, and other sources to assess potential conflicts.
  2. Assessing Likelihood of Confusion: Lawyers can analyze search results to determine whether the title you’re considering is likely to cause confusion with existing titles, trademarks, or other IP rights.
  3. Trademark Clearance: If the title is intended for use as a trademark, lawyers can evaluate its eligibility for trademark protection and clear it for registration. They’ll assess the distinctiveness of the title and its potential for infringing on existing trademarks.
  4. Copyright Considerations: For creative works like movies, books, and music, legal experts can advise on potential copyright issues related to title usage and guide you in avoiding similarities to copyrighted works.
  5. Domain Name Availability: Lawyers can check the availability of domain names related to the title, which is especially important for online content and branding.
  6. Risk Assessment: Based on the search results and legal analysis, lawyers can provide an assessment of the potential legal risks associated with using the chosen title.
  7. Alternative Title Suggestions: If the initial title search reveals potential conflicts, legal professionals can help you brainstorm alternative titles that are more likely to be cleared and registered.
  8. Negotiations and Licensing: In some cases, titles might be in use by other parties, but negotiations or licensing agreements can be arranged to allow you to use the title without infringing on their rights.
  9. Due Diligence for Investors and Distributors: If you’re seeking investors or distributors for your creative work, lawyers can provide evidence of title clearance, reassuring potential partners about the absence of legal complications.
  10. Documentation and Records: Legal experts can maintain thorough documentation of the title search process, search results, and any clearance-related actions taken. This documentation can be valuable if legal disputes arise later.
  11. International Considerations: If you’re planning to distribute your creative work internationally, lawyers can help navigate title clearance in different jurisdictions, considering trademark and copyright laws.
  12. Enforcement and Dispute Resolution: In case of disputes over title usage, lawyers can assist in enforcing your rights, negotiating with potential infringers, or representing your interests in legal proceedings.

Engaging a lawyer experienced in entertainment and intellectual property law is essential to ensure that the titles you choose for your creative works are legally sound and unlikely to result in conflicts or legal challenges down the line.

What’s covered under the right of publicity?


What makes you, YOU

Under the right of publicity, an individual’s name, likeness, and/or other meaningfully recognizable feature of one’s persona is covered and restricts others from using one’s “likeness” for commercial gain and profit.

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Our objective is to make your life easier and less stressful

Our attorneys specialize in intellectual property law and can guide you through the intricacies of a right of publicity claim. We have worked with artists, creatives, and sports figures in representing proprietary likeness rights and developing strategies to monetize character rights specifically vis-a-vis interactive gaming platforms. If someone has misused your name or likeness for commercial gain, or if you’ve been accused of violating another’s Right of Publicity, please contact us to speak to one of our attorneys.

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