Kardashian West is suing an Alabama doctor for using her name and likeness without permission to promote the procedure. 金、卡黛珊偉斯特對一名阿拉巴馬州的醫師未經其允許使用她的姓名和樣貌去為之行銷而提起民事訴訟 Kim Kardashian West is no stranger to making headlines, but about seven years ago the headlines themselves were stranger than usual thanks to a "vampire facial" the reality star turned entrepreneur underwent while filming Kourtney and Kim Take Miami. 金卡黛珊偉斯特成為頭條新聞已見怪不怪 Last year, Kardashian West divulged that she regretted the procedure and likely would have backed out if she hadn't been filming the show because she recently learned she was pregnant and couldn't use any pain mitigating products — and now she's suing because her name and image are being used to sell the service without her permission. Kardashian West on Monday sued an Alabama doctor for using her likeness to promote a similar procedure. In the complaint filed in California federal court, she alleges Charles Runels has been using her name, face — and even an Instagram pic (see below) — to boost his licensing business.
Right of Publicity v Copyright Infringement 知名度v著作權侵權 There have been instances in which a Right of Publicity claim has been preempted by Plaintiff’s copyright infringement claim. The Ninth Circuit recently found that a Plaintiff actor’s claim that his Right of Publicity had been violated was preempted by the Copyright Act because the “factual basis of his right of publicity claim was the unauthorized reproduction of his performance on the DVDs.” Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1154 (9th Cir. 2010). Therefore, the “essence” of Plaintiff’s claim was the reproduction and distribution of DVDs without authorization, which fell under Copyright protection. Explaining the rationale behind this, the Ninth Circuit stated that: “Were we to conclude that [Plaintiff’s] misappropriation claim was not preempted by the Copyright Act, then virtually every use of a copyright would infringe upon the original performer’s right of publicity.” Laws v. Sony Music Entm’t, Inc., 448 F.3d 1134, 1145 (9th Cir. 2006). 最近有一案例，知名度優先著作權而受保護。第九巡迴法院最近認定，原告起訴主張其知名度被侵害優先適用著作權法而受保護；因該知名度訴求之事實上依據係未經其授權重製DVD上 之表演，Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1154 (9th Cir. 2010). 所以，原告訴求之重製及散布DVDs，其落入著作權之保護。詮釋其背後之理論，第九巡迴法院闡述，我們總結原告起訴主張盜用著作權並不應先適用，實際上每一利用著作權係侵害原創表演者之知名度。Laws v. Sony Music Entm’t, Inc., 448 F.3d 1134, 1145 (9th Cir. 2006).
【 起訴事實 】 委任人甲原本於乙公司任職，離職後自行創業，不久乙公司竟稱甲所出版的教材，侵害乙公司專有之改作權、重製權、公開口述權及散布權，起訴請求甲應賠償500 萬元，並應將判決書以半版之篇幅（寬26公分、長35.5公分），刊登於中國時報、聯合報及自由時報之全國版頭版各一天，並應將本判決書全文以一頁之篇幅，刊登於商業週刊、天下雜誌及遠見雜誌各一期。........https://www.alicelaw.com.tw/cases_content.html?n=64
She Belongs to the Public: Court Rules that Marilyn Monroe Estate has no Rights of Publicity Background: For the past 50 years—since Monroe’s death in August 1962—Monroe’s Estate (and its successor, Monroe, LLC) has been asserting that it inherited Monroe’s right of publicity, claiming to own Monroe’s images, voice, likeness and biographical information—rights that were worth $27 million in 2011. 背景：自從瑪麗蓮夢露1962死亡至今已50年，其繼承人夢露有限責任公司持續主張其擁有瑪麗蓮夢露的名氣權，包括圖像、聲音、樣貌和傳記資料，這些在2011年總價值2千7百萬美元。 New York or California? 該繼承人主張其擁有瑪麗蓮夢露知名氣權，準據法究竟係依紐約州法抑或是加州法？ Rights of publicity vary from state to state: though most states recognize the right during a person’s lifetime, only a few states extend those protections after death. 美國各州對知名度之保護，採取不同的保護強度，雖然大多數的州承認人於其生存其間可主張知名度，僅有少不分的州承認死後名人權。Though in California individuals have a posthumous publicity right, which can be bequeathed, in New York, the right of publicity is extinguished at death. 在加州承認死後名人權，有可被繼承人所繼承，但在紐約知名度在人死後即消滅。Monroe died at a house she owned in Brentwood, California, though she also maintained her prior residence in New York City. 瑪麗蓮夢露於其加州Brentwood自宅內死亡，雖然其住所設在紐約Thus, the issue before the court was clear: if Monroe was a California resident at her death, the Monroe Estate would have inherited control of her name and likeness; if she was a New York resident, those rights would have expired when Monroe died.所以，於訴訟時爭點非常明確，假如瑪麗蓮夢露死時，是加州居民，其繼承人人可繼承並得支配其姓名與樣貌，假使她是紐約居民，上開權利於其死亡時即消滅。（待續）