Stock Image on ObamaCare Site Invites Scorn, Ridicule on Amateur Model

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.

GoDaddy Attacked By Pro-Piracy Hacker(?)

Yesterday, GoDaddy, one of the Internet's largest webhosts and registrars, was believed to have been attacked by an anonymous cyber-terrorist purportedly because of the Internet company's initial support for the Stop Online Piracy Act ("SOPA").

Our readers will recall that SOPA became a hot topic earlier this year, but the controversial anti-piracy legislation was effectively tabled due to vocal online protests.

It would appear from more recent reports that GoDaddy's problems may have been of the more internal variety, and not the work of pro-piracy hackers.

Kate Middleton's Family Website Examined for Compliance by Olympics

 Screenshot of PartyPieces.co.uk

In a stark reminder of just how seriously brand protection is being taken by London Olympics officials, even the party products website managed by the family of Kate Middleton is being scrutinized to ensure compliance with extremely strict branding guidelines, according to Time magazine.

The Middleton family's website, PartyPieces.co.uk, is advertising party goods under the heading “Let the Games Begin” and even had a ring toss game in the Olympic colors.

An official on behalf of the London Organizing Committee of the Olympic Games (LOCOG) said of the Middleton's website: “There are no infringements and the products are fine.  We will ask them to make minor changes to some copy.’’

Olympic enforcement officers have begun patrolling venues throughout the UK to ensure traders are not illegally associating themselves with the games.

A LOCOG spokeswoman reportedly said: “We will act if there is a commercial tie-in in any way.  We will ring and explain the obligations and most times this dialogue is friendly, people are usually doing it to be part of the fun, but companies are not allowed to promote an association with the Games if they are not a sponsor.”

Meat Loaf Sues Impersonator for Cybersquatting

First and foremost, I must confess that I am a fan of Marvin (now “Michael”) Aday, better known to the world as the singer Meat Loaf.  I have the seven anthems from Bat out of Hell Part I permanently etched on my iPod, and every word of Phil Rizzuto’s monologue from Paradise By the Dashboard Light memorized.  I am also a trademark lawyer who generally represents Plaintiffs in Court against infringers, including having litigated major cases involving “replicas” and “knockoffs.”  So it was with great interest and pro-Meat Loaf bias that I read about the singer's recently filed federal Complaint against U.K.-based impersonator Dean Torkington.

In contrast to the legitimate MeatLoaf.net site, Dean Torkington apparently registered the Internet domain name MeatLoaf.org. MeatLoaf.com was apparently already taken (not by the rocker, but by Rebeccah’s Fine Foods, who registered it in 1995, and who doesn’t seem to have done much with it since then).

Initially, it is worth noting that Torkington’s website and materials identify himself as a “tribute.”  Tribute bands and celebrity impersonators present a challenging (if not amusing) area of intellectual property law.

The Torkington "mini-tour bus."

With most tribute bands, there is not likely to be much evidence of actual confusion at the point when an ordinarily prudent consumer buys a ticket to a tribute show.  (Such a duped consumer would be no true fan of Meat Loaf, as Torkington is at best, a poor-man’s Meat Loaf).  I must confess that if I saw Torkington’s tiny little "tour bus" parked in the lot, I would most certainly NOT suspect that the genuine Meat Loaf was nearby, and would not begin my search for an autograph.

Rather, in such cases, a Plaintiff must rely on more creative applications of trademark law, such as the doctrine of initial interest confusion, otherwise known as the “bait and switch.”  Under this established concept, even ordinarily prudent consumers are initially confused and attracted to the second-comer’s product or service, only to later discover the lack of authenticity.  Such infringement is still legally actionable, as it serves to divert interest and undermine the brand owner’s rights.

Aday references this theory in his Complaint, in which he asserts that true fans are searching for the genuine website on the Internet, only to discover Torkington’s close imitation.  Further, Torkington's use of logos and images is a little too close for comfort, and there is even an allegation that Torkington created a YouTube handle "Michael Aday" to fraudulently impersonate the Plaintiff.

Of course, because the nature of all tribute bands is, in a sense, expressive and therefore potentially constitutionally protected free speech, tribute bands can readily assert the nominative fair use defense, which can be applied where the defendant's use of the trademark refers to something other than the real product.  A federal court in the New Kids on the Block v. News America Publishing Inc. case articulated a three-part test for nominative fair use:

First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

There are numerous Meat Loaf tribute bands which may satisfy this test, for example:  Dashboard Lights, Anything for Loaf, and my own personal favorite, Peat Loaf.

Finally, and potentially problematically for Mr. Torkington, if his domain name registration of MeatLoaf.org is deemed to have been in bad faith to capitalize on consumer confusion, he would not only lose the domain name, but face up to $100,000 in statutory damages.

In conclusion, Mr. Torkington may have come a little too close for comfort with his imitation of life.  In the words of the true Meat Loaf’s classic song, Torkington’s tributes will be gone when the morning comes.

Forensic Clues Hidden on the Internet

The following explains some of the terms used in Internet forensics, and suggests where relevant clues about a domain name may be hiding:

"IP Address"

Each and every computer on the Internet has a unique address - just like a telephone number or street address - which is a rather long and complicated string of numbers. It is called its "IP address" (IP stands for "Internet Protocol"). IP Addresses are hard to remember, so the Domain Name System makes using the Internet far easier for humans by allowing words in the form of a "domain name" to be used instead of the arcane, numerical IP address. So instead of typing 64.233.161.104, you can just type that IP address' domain name, and you would then be directed to the website that you are seeking connected to that domain name.

It is possible to "geolocate" an IP address by using a variety of free services available on the Internet. Geolocation is the practice of determining the physical, real world location of a person or computer using digital information processed and collected on the Internet.

Geolocation can offer the city, ZIP code or region from which a person is or has connected to the World Wide Web by using their device's IP Address, or that of a nearby wireless access points, such as those offered by coffeeshops or internet cafes.

Determining the country of an Internet user based on his or her IP address is relatively simple and accurate (95%-99% percent) because a country is required information when an IP range is allocated and IP registrars supply that information.

Determining the specific physical location of an IP Address down to a city or ZIP code, however, is a little more difficult and slightly less accurate because there is no official source for the information. Further, users sometimes share IP addresses and Internet service providers often base IP addresses.

Even when not accurate, though, geolocation can place users in a bordering or nearby city, which may be good enough for the investigation.

Internet Corporation for Assigned Names and Numbers (ICANN)

The Internet Corporation for Assigned Names and Numbers (ICANN) is an internationally organized, non-profit corporation that has the ultimate responsibility for Internet Protocol address space allocation, generic (gTLD) and country code (ccTLD) Top Level Domain name system management, and root server system management functions. As a private-public partnership, ICANN is dedicated to preserving the operational stability of the Internet; to promoting healthy and lawful competition; to achieving broad representation of global Internet communities; and to developing policies to foster these goals.

"Registrant"

Registrants are individuals or entities who register unique domain names through Internet Registrars. The Registrant is required to enter a registration contract with his Registrar, which sets forth the terms under which the registration is accepted and will be maintained. The Registrant's data is ultimately recorded in a number of locations: with the Registry, the Registrar, and, if applicable, with his webhosting provider.

"Registrar"

Domain names are registered by individual Registrants through many different companies known as Internet "Registrars." GoDaddy, for example, is a major ICANN-accredited Registrar. There are currently approximately 430 accredited Internet Registrars. A complete listing of accredited Registrars is in the ICANN Accredited Registrar Directory. A Registrar asks individuals, or "Registrants", various contact and technical information that makes up the official registration record. The Registrar maintains detailed records of the Registrant's contact information and submits the information to a central directory known as the "Registry." The Registry provides other computers on the Internet the information necessary to send the Registrant e-mail or to find the Registrant's Website on the Internet.

"Registry"

The Registry is the authoritative, master database of all domain names registered in each Top Level Domain. The Registry operator keeps the master database and also generates the "Zone File" which allows computers to route Internet traffic to and from Top Level Domains (TLD's) anywhere in the world. Internet users don't interact directly with the Registry; users can register names in TLDs by using an ICANN-Accredited Registrar (see above). Two of the largest Registries are Verisign (with authority over.com and.net TLDs, among others), and the Public Interest Registry ("PIR")(with authority over.org TLD's).

Top Level Domain (TLD)

Top Level Domains (TLDs) are the names at the top of the DNS naming hierarchy. They appear in domain names as the string of letters following the last (rightmost) ".", such as "net" in "http://www.example.net". The administrator for a TLD controls what second-level names are recognized in that TLD. The administrators of the "root domain" or "Root Zone" control what TLDs are recognized by the DNS. Generally speaking, two types of TLDs exist: generic TLDs (such as.com,.net,.edu) and country code TLDs (such as.jp,.de, and.cn).

"Whois"Data

All domain name Registries operate a "Whois" server for the purpose of providing information about all the Internet domain names registered with them. In a Shared Registry System, where most information about a domain name is held by separate individual Registrars, the Registry's Whois server provides a referral to the Registrars own Whois server, which provides more complete information about the domain name. The Whois service contains Registrant, administrative, billing and technical contact information provided by Registrars for domain name registrations.

By collecting and analyzing the Whois data, the Registry data, the Registrar data, and other bits and pieces of data about any websites associated with the domain name(s) you are interested in, a forensic investigator can often reconstruct a Registrant's identity, location and other contact information (e-mail, etc.).