Woa BriefEssay Preview: Woa BriefReport this essayARGUMENTLEGAL STANDARD ON SUMMARY JUDGMENTSummary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and the admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If it succeeds, the nonmoving party may defeat summary judgment by identifying facts that pose a genuine issue for trial. Id. at 324. In evaluating whether summary judgment should be granted, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).
To the extent such an order would be necessary, however, the court must decide what counts as factual information and how the court would proceed, and at what rate the record would be available to an adversary.
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*20 On March 18, 1992, the Circuit Court of Appeals awarded the State of Arizona a motion for a stay of the trial. Appellant filed a motion not challenging the facts here.
Brief
The brief
This brief focuses on matters concerning the defendant and his defense of claim 3, see Brief for Plaintiffs, Inc. v. Campbell, 437 U.S. 267 (1978). It describes the proceedings for trial. A motion for a stay of trials was granted in a court of the circuit. We consider these issues for the period of June 1 through May 31, 1994.
“In an effort to avoid a delay due to the discovery of a “federal criminal evidence record law violation” under the Brady Act, the plaintiff requested, on June 1, 1992, that it be considered, on file with the court, as part of a federal criminal offense for which state jurisdiction was claimed. The first phase of the trial is a trial in which each defendant is charged with a federal criminal misdemeanor involving conduct that violated an existing Federal law against the possession or use of Federal firearms. The trial is held upon the first day of June, and the defendant is sentenced to one year in prison and a fine under that law. Defendants have asserted a right to contest this federal criminal claim without presenting evidence or showing the law is violated.
“The defendants have argued that they are not seeking to challenge the federal felony law through appeal from the United States Court of Appeals for the Fifth Circuit as in the present case, but are challenging the court’s determination and authority to decide the evidence in this case through trial and appellate review. We agree. See Appellant v. Campbell, 437 U.S. 267, 272-271 (1978).”
“We should not presume that we will be entitled to an adequate notice of appeal. Our duty is simply to advise clients and witnesses concerning the laws in which this trial will be held. We should also give the court the appropriate power to make decisions about the jurisdiction of the trial, which will be available to us with respect to the district court’s findings and decisions on motions and motion for trial. We will not advise clients of the general rule of the courts or of the right of a defendant not to ask questions that would prejudge or deter future litigation.”
Case law
CELOTEX INC. v. Catrett, 499 U.S. 307 (1991). The trial court relied on the language in the trial court determination of whether summary judgment was appropriate based on the following considerations: (1) The trial court failed to consider the issue of the criminal felony law, (2) evidence presented in cross-examination or on exhibits; (3) there was no basis for the trial court to order a stay of the trial based upon the discovery that the facts of that matter require this trial to proceed; and (4) Rule 3 of Civil Jury Instruction for defense-not defense-is admissible. The trial court was not required to adopt a stay but could choose not to.
In addition, we
Summary judgment is appropriate upon a “finding that the challenged uses of plaintiffs names, images and likenesses” are “in connection with a news, public affairs, or sports account” within the meaning of [California] Civil Code section 3344, subdivision (d).” Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 407 (2001). In general, subdivision (d) is not an affirmative defense, and the burden is on the plaintiff, to establish that the uses in question fall outside of the subsection (d) exemptions. Id. at 417. Therefore, summary judgment should be granted if the plaintiff fails to show that the uses are not “in connection with a news, public affairs, or sports account.” Cal. Civ. Code Ч 3344.
Summary judgment is also appropriate if the debated uses of ones likeness are protected under the First Amendment. Because this is an affirmative defense, the moving party must show that the “work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebritys fame.” Winter v. DC Comics, 39 Cal. 4th 881, 890 (2003).
SUMMARY JUDGMENT SHOULD BE GRANTED BECAUSE BOSLEY IS EXEMPT FROM LIABILITY UNDER SECTION 3344(D) OF THE CALIFORNIA CIVIL CODEUnder section 3344 of the California Civil Code, anyone who uses anothers name or likeness on products, merchandise or goods, or for the purposes of advertising or selling products without the persons prior consent is liable for damages sustained by the person. Cal. Civ. Code Ч 3344 (West 1997). However, subdivision (d) of the statute specifically exempts from liability the use of a name or likeness in connection with the reporting of any political campaign, news, or public affairs account. Id. Ч 3344(d). Because the bobblehead makes use of Schwarzeneggers likeness in association with his Governorship and celebrity status, it relates to the reporting of both a news and public affairs account in addition to a political campaign. Therefore, the bobblehead is exempt from liability under section 3344(d).
The Bobblehead of Arnold Schwarzenegger Conveys a Public Affairs Account, in Accordance with Section 3344(d)Because subsection (d) of section 3344 distinguishes between news and public affairs, the court has interpreted the term “public affairs” to include things that would not necessarily be considered news, but rather things less important than news. Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536, 545 (1993). Generally, public affairs must be related to real-life occurrences. Id. An unconsented use of ones likeness for commercial purposes is inactionable if it is used in relation to public affairs or something of great public import. Gionfriddo, 94 Cal. App. 4th at 414. In some cases, the very use of a public figures name makes a statement of the public interest. N.Y. Magazine v. Metro. Transit Auth., 987 F. Supp. 254, 268 (S.D.N.Y. 1997).
The bobblehead constitutes public affairs under the broad definition offered by the Dora court. 15 Cal. App. 4th 536. In Dora, a former legend of the surfing subculture sued under section 3344 after footage and audio of him was featured in a surfing documentary. Id. These uses were found to be for “public affairs” purposes because of surfings influence on popular culture and lifestyle. Id. at 540-41.
Similarly, Major League Baseballs use of baseball players likenesses on websites and programs was protected under 3344(d)s “public affairs” exception. Gionfriddo, 94 Cal. App. 4th 400 (2001). The players knew their performances and games were being broadcast to the public. Id. at 406. Although the likenesses and statistics were not news, baseballs cultural influence (and therefore, its history and participants), are of great public interest and thus, constitute a public affair. Id. at 416.
Given that public affairs includes things that are less important than news, and given that baseball and surfing were found to be public affairs because of their influence on popular culture, Arnold Schwarzeneggers actions and persona are also issues of public affairs. Schwarzeneggers pervasive influence on popular culture, as both a movie icon and now, as the Governor of California, is unparalleled. His cultural and political influence is just as pervasive, if not more so, than surfing or baseball, as Mr. Schwarzenegger has come to represent certain issues through his policy goals and political affiliation.
The bobblehead is also protected because it is of a well-known celebrity and politician, in whom the public has an interest. Because of the nature of the status associated with public figures or personalities, the very use of their identities evokes a public interest in them. Paulsen v. Personality Posters, Inc., 59 Misc. 2d 444, 449-50 (N.Y. Sup. Ct. 1968). In Paulsen, a well-known comedian jokingly entered the 1968 Presidential race and unsuccessfully sought an injunction to bar the sale of posters containing his photograph with the words “For President” written across the bottom. Id. The court held that national politics is in itself a newsworthy arena, and becomes even more so when a well-known entertainer enters the race, “tongue in cheek or otherwise.” Id. See Montana v. San Jose Mercury News, 24 Cal. App. 4th 790, 794 (1995) (referencing Paulsen, as it was based on an action brought under New York Civil Rights Law section 51, “New Yorks equivalent of section 3344”).
Commentary does not violate a politicians right to publicity because by entering into the political arena, they become “the subject of commentary and controversy”