Thursday, October 7, 2010

One small step for man?

This post has nothing to do with Florida law. Nor does it concern copyrights, trademarks, or patents. But I find the case interesting, so I thought you might also.

Bruce McCandles II was a U.S. Astronaut. Like me, he did his graduate studies at Stanford (his degree is in electrical engineering -- mine is in computer science). Our paths substantially parted there. He became an astronaut. I didn't. He rode to space twice. Once on the Challenger in 1984 (2 years before it exploded) and once on Discovery in 1990. A very impressive career indeed.

During his first space flight in 1984, he apparently became the first astronaut to make an untethered space flight using a Manned Maneuvering Unit (MMU):

Photo source NASA.

So, why am I writing about this? Because he sued Dido's music labels for the cover art of her 2008 album "Safe Trip Home."

Ah, you say to yourself. He's claiming copyright infringement, right? Nope. NASA has a pretty interesting copyright policy. If you're going to use NASA materials, you can't state or imply that NASA endorsed your product or service, and NASA should be acknowledged as the source of the material. You also can't try to claim copyright or other rights in NASA material. Regarding photographs, NASA states:
Photographs are not protected by copyright unless noted. If copyrighted, permission should be obtained from the copyright owner prior to use. If not copyrighted, photographs may be reproduced and distributed without further permission from NASA. If a recognizable person appears in a photograph, use for commercial purposes may infringe a right of privacy or publicity and permission should be obtained from the recognizable person.
That last sentence is how McCandless is pursuing the record companies. He has sued under California's right of publicity statute, which provides a cause of action when someone uses another's name, photograph or likeness for the purpose of advertising without consent. The statute's definition of "photograph" requires that the person suing "is readily identifiable" in the picture. The statute provides some guidance:
A person shall be deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.
So, is McCandless "readily identifiable" in Dido's cover art? Don't know. McCandless cites to publicity surrounding the photo when it was first released, as well as several endorsement requests he has received.

Damages under this statute seem similar to damages under the Copyright Act (NOTE, I'm not a California lawyer). Like the Copyright Act, there is a statutory damages component. Under the Copyright Act, statutory damages can range from $750 to $150,000 (assuming infringement is proved to be willful and the work is timely registered). See 17 U.S.C. § 504(c). Under California's right of publicity statute, statutory damages would be $750. Both acts also provide for actual damages to the plaintiff and disgorgement of profits attributable to the unauthorized use. So, McCandless needs to show what his actual damages are (if any) and then establish what the gross revenues to the music companies are which are attributable to the use of the picture.

Maybe the record companies will give him an Offer of Judgment for $750. We'll see what happens.

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