November 4th, 2006
Michael Crook gets publicity as defendant, but probably has no publicity defense
EFF filed a lawsuit this week seeking to prevent abuses of the notice and takedown provisions of the DMCA. The suit involves Michael Crook, who became notorious earlier this year à la Jason Fortuny for revealing salacious and personal details about various Craigslisters to whom Crook had masqueraded as a young woman. (Apparently this kind of activity is a species of "griefing.") As EFF's press release and related coverage explain, Mr. Crook has been issuing takedown notices related to the unauthorized posting of a screengrab photo of him (shown here) taken from the Fox News program Hannity and Colmes. Mr. Crook is being widely and legitimately criticized for asserting a supposed copyright in a photo taken from Fox News coverage.
But as far off base as Mr. Crook may be on that front, the unauthorized use of his name and likeness potentially raises a different intellectual property consideration: that of the right of publicity. There would of course be a good deal of irony to Mr. Crook's attempted assertion of that right in connection with EFF's suit, given the nature of the activities that brought him to the forefront of people's attention. And in California at least, our publicity statute confers rights primarily related to associating one's name and/or likeness with sales and advertising activities, and specifies no permission is required for such use in connection with "any news…account." (These laws do vary state by state, and internationally.) Finally, the DMCA concerns itself specifically with copyright; thus, these DMCA misuse claims are unlikely to lose their teeth even if Mr. Crook were to look to right of publicity principles as a fallback justification for his notices.
[Updated November 5, 9:17 a.m.:] And kudos to Valleywag, for finally getting in on the fun.
Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law. See her full profile and disclosure of her industry affiliations.
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