Intellectual Property, Media & Entertainment, Licensing

In a media-driven world, image has a price tag

By Staff

Cocaine baron Pablo Escobar, boxing icon Muhammad Ali and film director Woody Allen seem like an incongruent group but there is a strong legal connection, says Toronto intellectual property lawyer Taras Kulish.

Kulish, a senior associate with Steinberg Title Hope and Israel, says all three have been involved in lawsuits to protect their high-profile images which are potentially worth millions of dollars.

Woody Allen sued American Apparel for US$10 million when they ran billboards in 2007 using his image from one of his films,” he says. “They settled for US$5 million. He had a strong case because he has a right to his image as well as one taken from his 1977 movie which is also protected by copyright.”

Escobar's brother Roberto recently demanded $1 billion from Netflix claiming the Medellin drug kingpin’s portrayal in the hit series Narcos was presented without licensing or permission from the company created to manage his image rights.

Likewise, the family of the late civil rights activist and heavyweight champion launched a US$30 million lawsuit against Fox Broadcasting claiming it failed to get permission for use of Ali's name, image and likeness in a Superbowl promo video aired in February 2017.

There are arguments to be made in both cases, Kulish tells, but it’s going to be a bigger struggle for the Escobar family.

Famous or not, people have a right to protect their image and ensure it is not used for financial gain in advertising or other promotions without their permission, says Kulish. “The law applies to everyone, even if you’re uncomfortable with why they’re famous, and their rights can apply after their death.”

In the Escobar case, according to the Hollywood Reporter, Roberto created Escobar Inc. to license ringtones, sunglasses and other items related to the cocaine king when the Narcos series was already in production. The family claimed it has been licensing video games under the title Narcos since 1986. It also claimed ownership of the phrase Cartel Wars.

The Hollywood Reporter says Escobar Inc. put Netflix on notice last July, threatening to shut down the show if payment of $1 billion wasn’t made. More ominously, it hinted at more violence after a Narcos location scout was murdered in Mexico, the publication reports.

Kulish says there are flaws in the Escobar claim which will make it difficult for it to process through the U.S. courts.

“While the family do have a legal right to the images and likeness of Pablo Escobar, in this case, Netflix is making art and presenting a story based on a historical figure. While they will make money out of it, it’s not the same as using the likeness in a commercial or to directly promote something they are selling. Besides, given Escobar’s record, it’s hard to see a jury awarding anything, except perhaps, the symbolic $1.”

Escobar's Medellin Cartel is believed to have supplied up to 80 per cent of the cocaine to the U.S. He was one of the richest men in the world when he was shot and killed in 1993 by an anti-narcotics task force following a 16-month manhunt.

Kulish says Ali's family has a much stronger case because Fox was using his image to promote their Superbowl NFL broadcast.

"With the Fox video you see Muhammad Ali — he’s so inspirational, his career as a boxer and then taking a stand against being drafted — but then there this sharp shift, comparing his greatness to white football players. It’s jarring,” says Kulish.

“If Fox did use this without the consent of the family, or in fact Muhammad Ali Enterprises LLC which controls those image rights, then that’s unfortunate. They should have known better.”

Kulish says the video leaves the impression the Ali estate is endorsing Fox’s broadcast which, if permission wasn't granted, is false and misleading.

“The family can certainly argue it cheapens and tarnishes the name of Ali,” he says.

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