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7th Circuit Opinion Is Right of Publicity Swan Song

By Robyn Hagan Cain | Last updated on

It's a tough world out there for a singing telegram performer.

For a start, did you realize that singing telegrams still existed? And then there's the fact that it's nearly impossible for telegram performers to control the distribution of their performances in the Internet age. Everyone has a camera phone.

Last week, the Seventh Circuit added to the singing telegrammer's already-heavy burden, ruling in an unpublished opinion that a singer simply couldn't survive summary judgment on her copyright infringement and right of publicity claims after a client recorded her performance.

Catherine Conrad was hired to perform a singing telegram at a SilverEdge Systems Software award event. SilverEdge arranged to record the performance so the company could post the video on its website. Conrad then sued the company and individuals involved for copyright infringement, alleging that they did not have her permission to record the performance of her copyrighted song because they did not pay her $40,000 licensing fee to post the video online.

She also alleged that they violated her right of publicity under Wisconsin state law.

At screening, the district court allowed Conrad to proceed on the theories that the defendants recorded the copyrighted song without her permission, or, alternatively, that their permission to retain a copy of the video was contingent on paying the licensing fee for posting the video on their website. The court, however, dismissed both of Conrad's right of publicity claim because she did not allege that her identity was used for commercial purposes.

During discovery, evidence revealed that Conrad had given permission to the SilverEdge to record the performance. She agreed to wear a microphone during her performance, and told personnel not to record her image because SilverEdge had not yet obtained a license to post her song on its website.

In emails after the performance, Conrad told SilverEdge that a six-month license would cost $40,000. The next day, SilverEdge informed Conrad that they had decided not to use the video on their website. (The company's web developer testified that no portions of the video had ever appeared on the website, and that they chose to use the video of a different performer's singing telegram instead.)

On appeal, Conrad argued that the district court erred in granting summary judgment by ignoring a factual dispute concerning whether the video was posted on the SilverEdge website for four months. But, as Conrad did not raise this issue in her amended complaint, she waived the argument on appeal. Furthermore, Conrad did not allege that her likeness was used for commercial purposes, so she failed to claim a violation of the right of publicity.

For any kind of performance artist, a right of publicity claim will likely hinge on whether those videos were ever made public. Before you begin an appellate song and dance before the Seventh Circuit, make sure your pleadings properly allege your cause of action.

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