Taking Names (And Violating Authors' Human Rights For Profit?)

By "taking names", I mean "taking" in the sense of misappropriating famous authors' and artists' real names or pen names, and without permission or compensation, taking and selling those names as advertising keywords.

In 2013, according to Penny Sansevieri of Author Marketing Experts, Amazon took the moral highground when debut authors attempted to exploit the names of celebrity authors (without permission) in order to market books.

https://www.amarketingexpert.com/amazon-making-big-changes-authors-beware/

Now, I hear, Amazon is cashing in, and selling celebrity author names as advertising keywords. Perhaps Jeff Bezos has (allegedly) lost his morals because Mark Zuckerberg is (allegedly) doing it? And getting away with it.

I am fairly confident that Amazon indeed may be selling names as keywords, because the Kindle advice forum is replete with advice on, for instance, how to pay Amazon to suggest to readers that ones writing is comparable to that of  JK Rowling.

https://www.kboards.com/index.php?topic=245100.0

I took Mark Zuckerberg's name in this context because Hypebot suggests that Facebook sells celebrity musicians' names as advertising keywords, and Hypebot quotes the "litigation risks" paragraphs from Facebook's own  2015 disclosures to investors as proof.

Facebook allegedly warns stockholders that American and international laws about the use of (presumably copyrighted) content, and the rights of publicity (that is persons' rights to their own names and likenesses) etc. etc. are still "evolving", and Facebook could be sued and lose--presumably massively-- in court(s).

http://www.hypebot.com/hypebot/2017/01/selling-artist-names-as-keywords-facebooks-misappropriation-problem-.html

Hypebot quotes Article 27 (2) of the Universal Declaration of Human Rights

“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” 

In my opinion, that suggests that Facebook may violate artists' and creators' human rights for profit.  If that's what Facebook is getting away with, it looks like Amazon is getting away with it, too.

Facebook and Amazon probably have a high-placed friend in Senator Sensenbrenner (R WI ) who, according to The Trichordist, is proposing to strip copyright owners (at least, the beleaguered musical authors) of the right to statutory damages and to legal fees, even if they prevail in court in a copyright infringement action.

https://thetrichordist.com/2017/07/29/you-think-its-bad-for-songwriters-now-wait-until-the-sensenbrenner-r-wi-shiv-bill-passes/

That will put an end to copyright infringement class action lawsuits against permissionless innovators!

In my opinion, authors and songwriters and musicians should be explicitly granted the right to opt in to having their names sold as advertising keywords (opt out is more onerous, and leads to problems of payment if the search engines "cannot find" someone) and they ought to be paid royalties every time their name is sold as a keyword.

Since that is rather unlikely, and might even require an Act of Congress, what's to be done about it?

The legal blog of FR Kelly discusses reasons to trademark your name, or the names of your children.

http://www.lexology.com/library/detail.aspx?g=4f7b84bb-f84c-490e-bf92-9aad96a93f3a&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2017-07-21&utm_term=

As they say, there may be money to be made from a name, so it is wise and prudent to make sure that the rightful owners of the name own the trademark. Otherwise, someone else could trademark the name first, and not only exploit it for profit, but also, prevent the rightful owner of the name from using it.

All the best,
Rowena Cherry

Some useful links from this week

The USPTO has been discussing "orphan" works, or “Facilitating the Development of the Online Licensing Environment for Copyrighted Works.” 

There are already ways for would-be exploiters of copyrighted works to locate and seek permission from rights holders, but Google and others would rather enjoy an "opt-out" system where authors' and songwriters' must proactively search out every would-be exploiter and actively opt out of being exploited.

http://accrispin.blogspot.com/2015/04/finding-authors-importance-of.html

I resorted to Wikipedia for this (below), having seen a news item about a new interactive gaming app that appears to exploit the likeness and final hours of a young man who died in a manner that made national headlines.

The discussion by Cyberguy did not clarify whether the bereaved family sold the rights, or whether they are being ripped off. 

Wikipedia:

The right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity. It is generally considered a property right as opposed to a personal right, and as such, the validity of the right of publicity can survive the death of the individual (to varying degrees depending on the jurisdiction).

Personality rights are generally considered to consist of two types of rights: the right of publicity, or to keep one's image and likeness from being commercially exploited without permission or contractual compensation, which is similar to the use of a trademark; and the right to privacy, or the right to be left alone and not have one's personality represented publicly without permission. In common law jurisdictions, publicity rights fall into the realm of the tort of passing off. United States jurisprudence has substantially extended this right.

A commonly cited justification for this doctrine, from a policy standpoint, is the notion of natural rights and the idea that every individual should have a right to control how, if at all, his or her "persona" is commercialized by third parties. Usually, the motivation to engage in such commercialization is to help propel sales or visibility for a product or service, which usually amounts to some form of commercial speech (which in turn receives the lowest level of judicial scrutiny).

IMHO, Science Fiction, Horror, Romance, and other genre authors should beware of assuming that just because a game app developer does something, it is safe and above board to emulate. It may not be. Rights may be involved. Permissions and contracts may be necessary.

On the other hand, there was an interesting article in an Authors Guild newsletter last year about the difficulties in copyrighting aspects of historical fiction where different authors relied on the documented life of a real historical person, that is, when one accuses the other of plagiarism for using identical historical details and events.

As a bit of a copyright enthusiast (you noticed?) I am silently cheering The Turtles for their sterling work in going after exploiters of their copyrighted musical works. 

http://www.lexology.com/library/detail.aspx?g=bbe7f946-023f-4249-8609-400add5aaf2e&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+Federal+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2015-04-22&utm_term=

What I do not understand is why there isn't a class action suit involving all my favorite musicians and bands (living and deceased) from the 1950's, 1960's, and early 1970's who have not been paid any royalties at all by various subscription services. 

Big tech has taught us all to call copyrighted works "content"....  as www.TheTrichordist.com puts it, it is not so much "the internet of things" as "the internet of other people's things."

Excellent quote from The Trichordist on copyright (where the British Green Party allegedly proposes to cut copyright protection to just 14 years, and redistribute authors', musicians', movie makers', photographers' and others' rights to Google:

Ask yourself this: Exactly how does technology make it any less expensive to write a novel?   Writing a novel is purely a work of intellectual labor.  I suppose it’s easier to spell check…,  the backspace key is more convenient than White-out™ and a brush…  But I’m not seeing any evidence it’s less expensive.   In fact I would argue that since the modern English author lives in a much richer society than Dickens, that the relative cost of his labor is much much higher. 

All the best,

Rowena Cherry