Shaw lost out on $1,950 in cash and a trip to Nashville, which was valued at over $8,000. The next contestant answered the puzzle correctly, without an “and,” and went on to finish ahead of her at the end of the game.
While it was certainly a disappointing turn of events for Shaw, she still went home with $3,000 AND a smile. On Thursday night, contestant Jessie Reagan did just that when she correctly guessed the episode’s three-word-bonus puzzle with the help of just one additional letter.
Reagan’s extraordinary feat floored longtime host Pat Speak, who remarked that “this game makes no sense at all.” After watching last week’s bizarre NSFW answer, it’s hard to argue that he’s wrong. Reagan, a middle school teacher from Florida, was tasked with completing the “What Are You Doing?” puzzle category, the same one that stumped contestant Marie Leo last week.
“Are you sure?” says Richter, when confronted with the final prompt: F__K, with two squares in the middle. Among numerous claims, the complaint alleged that the defendants infringed her trademark rights under § 43(a) of the Latham Act, 15 U.S.C.
With respect to the federal claim under the Latham Act, the district court dismissed based on its conclusion that no reasonable jury could find that defendants' use of plaintiff's performance in their commercial implied an endorsement by plaintiff of Frito-Lay's potato chips. As for the dismissal of the state law claims, the court improperly assumed facts adverse to plaintiff.
As the camera pans from one model to the next, each looks crestfallen that the bag of Baked Lays in her hands is empty. The camera moves on to Miss Piggy, also reclining by the pool, who has been eating the chips and passing the empty bags to the models, while singing along with plaintiff's recording.
A voice-over identifies Baked Lays, and adds, “With one and a half grams of fat per one ounce serving, you may be tempted to eat like a” “Don't even think about it!” interrupts Miss Piggy. “Panama” was written by Vicious de Moraes and Antonio Carlos Job.
Norman Gumbel composed the English lyrics for the song and registered a U.S. copyright for them in 1963, renewing in 1991. In order to use the recording in the Baked Lays commercial, BBD purchased the synchronization rights from Duchess Music Corporation on behalf of Job and Gumbel Music Group on behalf of Gumbel.
Apparently believing that Gilberto had retained no rights in the recording, BBD did not seek her authorization to use it in the ad. Gilberto received a Grammy Award for the recording, which immediately became a smash hit and launched her now thirty-five-year career in singing.
She claims as a result to have earned trademark rights in the 1964 Recording, which she contends the public recognizes as a mark designating her as a singer. Gilberto's complaint at first asserted “false implied endorsement” under Section 43(a) of the Latham Act, 15 U.S.C.
The court ruled against dismissing the Latham Act claim because it was “not entirely implausible” that plaintiff could prove that the audience might interpret the inclusion of the 1964 Recording in the ad as implying Gilberto's endorsement of Baked Lays. The claim for unfair competition was dismissed because the court found Gilberto failed to allege a property right in the 1964 Recording.
Noting, however, that by pleading exceptional circumstances, she might be able to overcome the presumption of relinquishment upon publication, the court granted her leave to rep lead the unfair competition claim. Rights Law § 51, the court dismissed on the ground that the statute applied only to the use of a “name, portrait or picture,” and Gilberto did not allege such a use.
The district court denied the motion as to the unfair competition claim without leave to rep lead. The court therefore granted Gilberto leaves to rep lead the claim under § 51 to allege wrongful use of her voice.
This time, however, the claim was framed in significantly broader terms-not merely for “false implied endorsement,” but more generally, for “capitalize on Plaintiff's valuable reputation and goodwill” in a way “likely to cause confusion or to deceive as to the affiliation, connection, or association of Defendants with Plaintiff, or as to the sponsorship or approval of Defendants' goods by Plaintiff.” In addition, the complaint raised a claim of trademark dilution under Section 43(c), 15 U.S.C. It dismissed the dilution claim because in the court's view, “there is no Federal trademark protection for a musical work.” I'd.
As to the right of publicity claim under § 51, now pleaded to allege unauthorized use of Gilberto's voice, the court ruled that no valid claim was pleaded because an exception to liability arises under § 51 when the plaintiff has “sold or disposed of the voice embodied in the production.” I'd. Defendants then moved for summary judgment on the remaining claim under Section 43(a) of the Latham Act.
In an opinion delivered from the bench on February 10, 2000, the district court granted the defendants' motion and dismissed the case giving two reasons-first, that Gilberto lacked standing to raise a Latham Act claim because “the record discloses no competitive or commercial interest affected by the conduct complained of,” and second, that “no reasonable jury could find for plaintiff on her claim of implied endorsement.” On March 23, 2000, judgment was entered in favor of the defendants. On appeal, Gilberto challenges the dismissal of (1) her claim for trademark infringement under the Latham Act, and (2) three New York law claims alleging violation of CivilRights Law § 51, unfair competition, and unjust enrichment.
The district court granted summary judgment on Gilberto's Latham Act claim on two grounds: (1) a fact finder could not reasonably find that the ad implied Gilberto's endorsement of Frito-Lay's product, and (2) lack of standing. § 1125(a),” and which seemed to rely solely on the implied endorsement theory, this reasoning might dispose of the Latham Act claim.
It expressly asserts that “Plaintiff's performance of her signature song constitutes Plaintiff's unregistered trademark” and that the defendants' use of the recording of plaintiff's performance in its advertisement “capitalize on Plaintiff's valuable reputation and good will and likely to cause confusion or to deceive as to the affiliation, connection or association of Defendants with Plaintiff.” These passages assert that Gilberto possesses a trademark in her 1964 performance, and the defendants made unauthorized use of her mark in their advertisement, causing likely consumer confusion. Gilberto sought to support this theory in defending the motion for summary judgment by affidavits asserting that the song is her signature piece and the centerpiece of all her concert appearances, that the public associates her performance of Panama with her, and that she bills herself as “The Girl from Panama” and operates an informational website under that name.
The district court's ruling did not expressly address this branch of plaintiff's Latham Act claim. The Act defines a “trademark” as including “any word, name, symbol, or device, or any combination thereof used by a person to identify and distinguish his or her goods from those manufactured or sold by others and to indicate the source of the goods.” 15 U.S.C.
We can see no reason why a musical composition should be ineligible to serve as a symbol or device to identify a person's goods or services. In deciding that it could, the Court reviewed the broadly inclusive language of the statutory definition and observed that the courts and the Patent and Trademark Office have authorized trademark protection for “a particular shape (of a Coca-Cola bottle), a particular sound (of NBC's three chimes), and even a particular scent (of Sumeria blossoms on sewing thread).” I'd.
For many decades it has been commonplace for merchandising companies to adopt songs, tunes and ditties as marks for their goods or services, played in commercials on the radio or television. 1 We can see no reason to doubt that such musical compositions serve as marks, protected as such by the Latham Act.
We do, however, affirm the district court's dismissal of the trademark infringement claim for a slightly different reason. Dealing with a related question, a panel of our court considered whether a musical composition could serve as a trademark for itself, and concluded it could not.
For similar reasons, we conclude that, at least upon the showing made by Gilberto, the law does not accord her trademark rights in the recording of her signature performance. It is true, there are instances in which courts have protected the “persona” of an artist against false implication of endorsement generally resulting from the use of look-alikes or soundalikes.
See, e.g., Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1107 (9th Cir.1992) (affirming judgment for plaintiff, Tom Waits, on false implied endorsement claim for use in a snack-food commercial of a singer who imitated plaintiff's gravelly singing style praising defendant's product); White v. Samsung Elect. Am., Inc., 971 F.2d 1395, 1400-01 (9th Cir.1992) (holding there was genuine issue of material fact precluding summary judgment as to false implied endorsement claim brought by Anna White, the hostess of the Wheel of Fortune game show, for use in an advertisement for VCR's of a look-alike caricature robot endorsing defendant's product); Allen v. National Video, Inc., 610 F. Supp.
612, 627-28 (S.D.N.Y.1985) (upholding actor Woody Allen's claim of false implied endorsement for use in an advertisement for video-rental stores of a look-alike renting videos from defendant). The use of her recorded song has not taken her persona, and the district court properly concluded that she could sustain no claim of implied endorsement.
If Congress were to consider whether to extend trademark protection to artists for their signature performances, reasons might be found both for and against such an expansion. But for a court now to “recognize” the previously unknown existence of such a right would be profoundly disruptive to commerce.
Numerous artists who could assert claims similar to Gilberto's would bring suit against entities that had paid bona fide license fees to all known holders of rights. Immense unforeseen liabilities might accrue, upsetting reasonable commercial expectations.
We can see no justification for now altering the commercial world's understanding of the scope of trademark rights in this fashion. We perceive no need in the interests of fairness to so expand the scope of trademark, because the law affords performing artists a number of other protections-even for performances made before the federal copyright statute was expanded in 1972 to cover sound recordings-including significant protections that may be secured by contract.
Among the claims of the Second Amended Complaint, Gilberto alleged that the defendants violated her right of publicity as protected by N.Y. CivilRights Law § 51, by “us voice in an advertisement for a snack food product without her written consent.” Appellant's Br. Section 51 of the N.Y. CivilRights Law provides a claim for an injunction and damages in favor of “NY person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without written consent” N.Y. CIV.
But nothing contained in this article shall be so construed as to prevent any person, firm or corporation from using the name, portrait, picture or voice of any author, composer or artist in connection with his literary, musical or artistic productions which he has sold or disposed of with such name, portrait, picture or voice used in connection therewith. The district court read Gilberto's complaint to admit that she had placed the recording of Panama in the public domain and had thus “disposed of” her artistic production.
In sum, on a motion under Rule 12(b)(6), the court could not properly read the complaint as admitting that plaintiff was not the beneficiary of any contract rights pertaining to the public release of her recorded performance or that she placed her recording in the public domain. The reason was essentially the same as given for the dismissal of the claim under § 51-that “the facts alleged do not permit the legal conclusion that plaintiff maintains a cognizable right” in the 1964 Recording.
These state law claims are remanded with instruction to dismiss them without prejudice so that they may be rep leaded in the courts of New York. A few famous examples over the years have been the William Tell Overture for the Lone Ranger (see Registration No.
Start using it today,” “When you see the three-ring-sing, Ask the man for Ballantine,” “Chock Full o' Nuts is that heavenly coffee,” “National Shoes ring the bell,” Alka-Seltzer's “Plop, plop, fizz, oh what a relief it is;” “Spud cigarettes are cooler than cool,” as well as the theme songs of the “I Love Lucy” show “The Honeymooners”, “Sesame Street,” Mr. Rogers' Neighborhood, and “The Sopranos.” Issues of state law raised by the parties' contentions that are not directly addressed by New York decision authority include whether § 51 provides the exclusive remedy for unauthorized use of a person's voice, displacing claims for unjust enrichment; whether common law copyright in a voice recording that was placed on sale prior to the Copyright Act's provision of protection to voice recordings on February 15, 1972, went into the public domain if the recording was first publicly sold with the recording artist's consent; whether § 51 applies to voice recordings made, or sold or disposed of, prior to the amendment of § 51 to cover voice recordings; and whether the exception to § 51 authorizing use of the “name, portrait, picture, or voice of any artist in connection with his literary, musical, or artistic productions which he has sold or disposed of with such name, portrait, picture, or voice used in connection therewith” applies only to uses that commercially identify or describe or promote the work in question.