With teen pop sensation Justin Bieber gracing Australian shores (and pre-teen hearts) this week, we’ve noticed that it’s not just hordes of screaming girls that he’s been attracting. He’s getting quite a following of lawsuits. One that’s particularly sparked our fancy is the filing, by app-creator RC3, of a pre-emptive lawsuit against the Biebs, claiming the right to operate, maintain and distribute their ‘parody’ video game app ‘Joustin’ Beaver’. That’s right. It’s totes on between Justin Bieber and his arch-nemesis, a buck-toothed animated Beaver with a penchant for neon.
Available on iTunes for $0.99, Joustin’ Beaver gamers help a fringe-haired, sweater-wearing hipster beaver float down a river with a lance, signing Otter-graphs for fans, knocking paparazzi ‘Phot-hogs’ into the river and keeping Joustin’ in control by avoiding the dangerous ‘whirlpool of success’.
In February this year, on the instructions of one seriously Angry Bieber, the Biebs’ attorneys sent a cease and desist letter to RC3 demanding that the App-developer terminate the App and remove it from the iTunes stores and all e-commerce sites. The letter alleged a number of contraventions, including passing off, unfair competition, dilution, misrepresentation, misappropriation of name for commercial purposes, violation of rights of publicity and trademark in-‘fringe’-ment.
When negotiations failed to provide a resolution between the parties, not willing to just ‘Leave it to Bieber’, RC3 filed a lawsuit seeking a declaration to preserve its rights with respect to the App. In RC3’s complaint for declaratory judgment, available here, it seeks declarations under the United States Lanham Act, that the operation, maintenance and distribution of the App, the use of the term ‘Joustin’ Beaver’ and all associated materials do not infringe, dilute or otherwise violate the rights of Justin Bieber. RC3 has even sought to invoke the United States Constitution, claiming that its right to parody the commercial success of Justin Bieber through a beaver on a mobile app is protected under the First Amendment (no doubt, exactly the kind of thing Benjamin Franklin and the Founding Fathers had in mind!).
According to gossip site TMZ, Bieber’s attorneys promptly responded to the RC3 lawsuit by asserting that RC3 filed the lawsuit in the wrong state – claiming it should have been filed in California (where the Biebs lives) rather than Florida (where the original cease and desist letter was served). In March, RC3 filed an amended complaint, providing further detail on why Florida was an appropriate jurisdiction. (On the style front, we were also interested to note the Biebs’ lawyer signing off the cease and desist letter with the phrase ‘Dictated but not read’, apparently common practice in the United States. We think Justin should come up with his own version of this, to use when autograph requests get out of control!)
This isn’t the first time the pint-sized pop star has been named as a defendant in proceedings:
- In November 2011, 20-year-old Mariah Yeater filed a paternity suit against Bieber, claiming that she had his “Baby, baby, baby, ohh”. The lawsuit was dropped before it went to trial.
- In March this year, he was sued after a Twitter prank gone wrong, when he posted an incomplete phone number, telling his 19 million followers to call him right now. Two Texans, whose numbers started with the same digits claim they were plagued by phone calls from teenage girls night and day. The relief allegedly being sought was unique, including an apology, concert tickets, cash, and an endorsement for an upcoming online project being pioneered by one of them.
- Last Wednesday, Stacey Wilson Betts, the mother of one of Justin’s fans filed a complaint seeking $9.23 Million, claiming she had suffered severe hearing damage from a 2010 Bieber concert, when the ‘frenzy of screams’ from Beliebers (Justin’s fans) exceeded safe decibel levels. A copy of the complaint is available here thanks to TMZ.
Application in Australia
In Australia, there is no common law or statutory right of publicity. A person’s image or public persona is also not a subject matter protected by copyright law, so although the App purports to be a parody, there would be no legislated exception. Celebrities in a similar situation would primarily need to rely on:
- s 18 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law “ACL”), for misleading or deceptive conduct;
- s 29 of the ACL for false or misleading representations about the sponsorship or approval of the App; or
- the common law of passing off.
In Pacific Dunlop v Hogan (Crocodile Dundee) (1989) 23 FCR 553, involving an ad for Pacific Dunlop’s shoes which was a humourous re-enactment of the famous ‘That’s not a knife!’ scene from Crocodile Dundee, the Full Federal Court rejected Pacific Dunlop’s claim of parody as an excuse for representations which were held to mislead or deceive. The Court held that if a significant section of the public would be misled into believing, falsely, that a commercial arrangement had been reached between the two parties under which the first had agreed to the advertising, then passing off and misleading or deceptive conduct would be made out.
However, at this point a passing off suit becomes far more complicated than the other celebrity go-to – the birthday suit. In order to establish a claim for passing off, a celebrity would have to prove more than mere dilution of their reputation. On these facts, if Justin Bieber could establish that RC3’s app deprives him of a licensing opportunity, for example with another cartoon parody app, this may be sufficient as it may be viewed a form of damage to goodwill with direct financial consequences.
Whatever the result, it seems likely that for RC3, the publicity from being embroiled in a lawsuit with Bieber has enabled it to seriously cash in on ‘Bieber Fever’. In the meantime, true Beliebers might want to start brushing up on their knowledge of the Lanham Act…
– Charles Noonan and Samantha McHugh –