Unfortunate accidents: the Bob Ross saga and intellectual property rights explained (1)
At the root of the scandal and drama of a Netflix documentary about painter Bob Ross, there is an intellectual property fight that revolves around nature and the good stewardship of assets such as publicity rights.
The documentary, “Happy Accidents: Betrayal and Greed,” delves into the story of Ross’s rise and his son Steve’s legal struggle to secure Ross’s intellectual property, including rights to his name and likeness . But ultimately, the corporate structure of Bob Ross Inc., founded by the soft-spoken television painter, his wife and business partners Annette and Walt Kowalski, dictated the outcome.
Bob Ross Inc. obtained all of Ross’s intellectual property rights in a 2019 court ruling, contrary to what his will said upon his death. The four founders had created Bob Ross Inc. as the sole owner of Ross’s intellectual property rights, and if one founder dies, the others share the share. Ross’s wife died first, then Ross, so the Kowalskis ended up with it all in another uplifting tale of intellectual property rights management.
The 2019 case also alluded to questions about what would have happened if different types of rights were in conflict.
(1) What are publicity rights?
Publicity rights are the right of an individual to control the commercial use of his image, likeness and personality. In other words, people can’t use you to sell things without your permission. In the case of Bob Ross, the law is inherently involved in the sales of Bob Ross brand paint supplies and other merchandise. Bob Ross Inc. also owned Bob Ross trademarks, including a logo with his name and face, as well as his iconic frizzy hair.
Publicity rights do not derive from federal law but from state and common law, which vary. Federal Trademark Law incorporates a false endorsement provision, but this requires showing consumer confusion.
(2) What happens when a person dies?
It depends on where they lived. About two-thirds of the U.S. population reside in states that protect a posthumous right, according to information compiled by Jennifer Rothman, a law professor at the University of Pennsylvania. In most other states, the degree of protection is unclear. The right can expire between 10 and 100 years after the death of the individual.
While there is a posthumously protected right, the right to control and sell the use of the deceased’s image in a commercial setting can be passed on to an heir, like all property. Bob Ross has ceded 51% of his intellectual property, including publicity rights, to his half-brother, Jimmie Cox, and 49% to his son, Steve.
Or, at least, he thought he had. The US District Court for the Eastern District of Virginia said his intellectual property did not belong to him when he died.
(3) Wait, can you lose business control over your identity?
It’s complicated, but generally yes. Laws and common law based on property rights generally create a transferable right before and after death.
Ross never officially waived his rights. But in the Eastern District of Virginia case, the court cited “licensing agreements that stipulated that BRI, not Bob Ross, had exclusive ownership of the relevant rights.”
A 1997 settlement between the company and the Ross estate officially signed Ross’s intellectual property rights to Bob Ross Inc., although his son Steve said in the documentary that he was unaware of his alleged inheritance. of intellectual property that shortly before his trial in 2017.
There is a debate as to whether publicity rights should be transferable.
“The right to assign your identity is a troubling concept,” said Mary LaFrance, professor of intellectual property law at the University of Nevada in Las Vegas. “You basically give your right to a company to do whatever it wants with your image. And I think most academics find it troubling.
(4) What if Bob Ross never gave up his advertising rights?
That alone might not have done any good for Ross’ heirs. Publicity rights, a state right, would effectively give way to federal trademark rights of Bob Ross Inc., said intellectual property law professor Marshall Leaffer at Indiana University.
“You can imagine the chaos that would occur if advertising rights were to trump trademark rights,” Leaffer said. “The supremacy clause could not tolerate this.”
Leaffer also said that the Lanham Law ban on using a well-known identity as a trademark without permission would not apply: Ross had granted this permission to Bob Ross Inc ..
“The guy licensed his image,” Leaffer said. “In this case, publicity rights and trademark rights collide. The rights to the goods almost swallow up the rights to publicity, because the merchandising is going to be image-based.
LaFrance agreed that Ross’s heirs likely wouldn’t be able to shut down Bob Ross Inc., or really do a lot of business on their own with just the publicity rights. Using them to advertise anything related to paint would almost certainly infringe the trademarks of Bob Ross Inc ..
“Once the company has built that image or that brand, it has acquired the rights to its image and its brands,” said LaFrance. “Once the company has invested in building a business around these brands, it would be unfair to revoke their authorization.”
(5) What’s the lesson in all of this?
Intellectual property attorneys regularly advise anyone with potentially valuable intellectual property to seek legal advice from an estate planner before signing a dotted line. And they say to consider disputes that may seem unimaginable at the time.
LaFrance said Ross accepting the corporate setup of Bob Ross Inc. essentially disinherited his family if a Kowalski survived a Ross. At this point, there was probably nothing he could do about it.
“It strikes me as a big mistake in the way Bob Ross allowed the other owners of the company to take ownership of his shares instead of giving them to his children,” LaFrance said. “Even if they are apart, think about the future: you can have a reconciliation. “
To learn more:
—From Bloomberg law
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