Monday, October 28, 2013
Aspiring models, be warned.
Now that the initial launch of the federal "ObamaCare" website has been declared an unmitigated logistical disaster, an odd intellectual property issue has been mentioned by bloggers and political pundits: the rights of the models depicted in the stock photography used on the site.
When HealthCare.gov launched live on October 1, tens of millions of Americans visited the site to view an ethnically ambiguous, attractive 20-something woman smiling back, promising affordable health care. "ObamaCare Girl" is precisely the target demographic that the administration is hoping sign up for health care.
Fox News called the smiling woman depicted in the stock photograph "mysterious," writing that "she smiles back at countless frustrated Americans as they tried to log onto the ObamaCare website." The Washington Times dubbed her "Glitch Girl," and created a pseudo-mystery around her identity.
Since its launch, the website has crashed repeatedly, leading Congressional leaders to demand an accounting for the $300M dollars that have been spent on the website so far, given that few applicants have been satisfactorily able to sign up through the portal.
The unknown model whose face was used on the site may not be pleased with the newfound notoriety, but may have no legal recourse.
"Stock" photography is offered commercially by a wide variety of sources, such as Getty Images, Corbis, iStockPhoto.com and ShutterStock.com. For an appropriate license fee, any user can easily download and use stock images for a variety of applications, including blogs and websites.
When objects depicted in the stock images are inanimate, the only release that is secured by the distributor is a license or assignment from the photographer. Photographers are paid a scaled fee based on, among other things, the number of times that their images are downloaded and used.
However, when models are used in the images, the photographer typically secures a standard "release," which grants the licensees (including the distributors and end users) the right to pretty much plaster the image all over their websites and blogs.
The models essentially agree to release any claims that they might otherwise have for invasion of privacy, or appropriation of likeness under states' laws, in exchange for a nominal sum received from the photographer. In most cases, amateur models are paid very little to nothing per image, and give up all rights to control how their likenesses are used.
In the case of the anonymous woman whose face ended up appearing on a website viewed by millions of annoyed Americans, that notoriety might have been more than she bargained for.
The New York Daily News has noted that the image of ObamaCare Girl has now been removed, only to be replaced by stale graphics.
Thursday, September 5, 2013
|Image on AFDI Website|
A U.S. federal trademark application for an anti-sharia law campaign known as "STOP ISLAMIZATION OF AMERICA" was filed by a group called the American Freedom Defense Initiative (AFDI), a pro-Israel group founded by controversial bloggers/commentators Robert Spencer and Pamela Geller.
The AFDI had been behind a grassroots movement that sought to stop the building of a mosque in lower Manhattan, near the Ground Zero World Trade Center site, claiming that the act would offend 9/11 victims' families.
Critics such as the Southern Poverty Law Center and the Anti-Defamation League have accused the AFDI of being an anti-Muslim hate group, alleging that it promotes a conspiratorial anti-Muslim agenda under the guise of fighting radical Islam" and "seeks to rouse public fear by consistently villifying the Islamic faith and asserting the existence of an Islamic conspiracy to destroy 'American' values."
The Trademark Office refused the group's application for a trademark on the basis that it "consists of or includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs or national symbols."
The Trademark Office ruled that it must apply a two factor legal test, asking: (1) What is the likely meaning of the matter in question; and (2) is that meaning referring to identifiable persons, institutions, beliefs or national symbols, and whether that meaning is disparaging to a substantial composite of the referenced group.
The Trademark Examiner concluded that, applying this test, the likely meaning of ISLAMIZATION refers to the act of converting to Islam, and that the proposed mark effectively disparages Muslims by implying that conformity to Islam is something that needs to be stopped.
The Trademark Office cited several cases supposedly supporting its conclusion.
However, on further examination, the cases that the Examiner cited were not necessarily relevant or helpful to its case, such as when the Trademark Office found THE MEMPHIS MAFIA for entertainment services not to be matter that disparages Italian-Americans or bring them into contempt or disrepute.
The Trademark Office had further cited the controversial proceedings finding that the WASHINGTON REDSKINS trademark should be cancelled on the same grounds.
The group appealed the Examiner's final refusal to the Trademark Trial and Appeal Board (TTAB), which affirmed the rejection.
Now, the group has appealed this decision to the United States Court of Appeals for the Federal Circuit, which hears appeals from final Trademark Office refusals to register trademarks.
In the appeal brief, the AFDI's lawyer argues that:
"Appellants [Geller and Spencer] are sympathetic to the USPTO’s politically correct sensitivities enticing it to protect Muslims and indeed Islam itself from even the slightest hint of disparagement in the form of public criticism, especially in the post-9/11 age with global terrorism conducted daily in the name of Islam and the Arab Spring featuring the Muslim Brotherhood’s Islamisation program for Egypt and elsewhere melting into murder and mayhem.
The problem with these sensitivities as applied to the denial of Appellants’ Mark is that the USPTO’s beef is not with Appellants or their Mark, but rather with terrorists who claim to speak in the name of all of Islam and all Muslims. Appellants’ Mark does not.
|One of the AFDI's NYC MTA Advertisements|
'Stop the Islamisation of America' has a specific meaning that Muslims and non-Muslims in America and indeed throughout the West embrace if they treasure liberty and religious freedom for all. In a zeal to take on the role of parens patriae and to protect Muslims from every insult, the USPTO and the TTAB have both ignored the factual record and have simply assumed meanings and understandings of the terms of the Mark that have no factual or evidentiary basis. There is no substantial evidence to support the TTAB’s Decision or the USPTO’s denial of the Mark."
The USPTO has yet to file its response.
The AFDI has seen its fair share of federal litigation and previously triumphed. For example, in a federal lawsuit that it filed against the New York Metropolitan Transit Authority (MTA), the group succeeded in forcing the MTA to carry its advertisements on the sides of New York City buses and in the subways.
The MTA had rejected the group's advertisements, purportedly on the basis that they "demeaned" Muslims.