Originally Posted by KRosh

Not that I feel the need to answer to anyone, but since you question the validity of XXXcash sites, here's a statement from our attorney.



1. Does XXXCASH?s use of celebrity images violate California Civil Code Section 3344?

Cal. Civ. Code § 3344(a) sets forth the statutory right of publicity to a person?s ?name, voice, signature, photograph or likeness? and imposes liability where the use is knowing, for the purpose of ?advertising or selling? and is ?without the person?s prior consent?. Cal. Civ. Code § 3344(d) exempts any use ?in connection with any news, public affairs, or sports broadcast or account, or any political campaign?. We have previously written to you and explained that the First Amendment provides for a similar exemption for uses in connection with matters of public interest.

We believe that your activities, as you describe them, involve both ?news? and ?public affairs? so that the statute is not violated.

The meaning of the term ?public affairs? was considered in Dora v. Frontline Video, Inc., 15 Cal. App. 4 536, 545-46, with the Court holding that ?public affairs? means ?something less important than news?. The Court stated that ?[p]ublic affairs? relates to ?real life occurrences? about which the public is interested. The public is ?constitutionally entitled to know about things, people, and events that affect it?. The Court concluded that the term ?public affairs? could not be limited to ?topics that might be covered on public television or public radio,? as to do so, ?would be to jeopardize society?s right to know.

We also believe that your use of celebrity photos constitutes a depiction of ?news? as that term is used in this statute. We have previously written you in detail about how showing celebrity photos as part of a news presentation can be newsworthy, and you have informed us that your site is newsworthy.

Indeed, the amount of effort you extend in making your site newsworthy is impressive. You have informed us that you employ a Celebrity Content Manager and staff who has been directed to provide your members with a ?One Stop Shop? treasure trove of newsworthy information about their favorite celebrities.

The enhancement of content on your celebrity web sites includes, but is not limited to, the following information and features:

? Celebrity Biography
? Celebrity Filmography
? Celebrity Trivia
? Celebrity Birthday and Horoscope
? Celebrity Gossip
? Celebrity Mug shots
? Celebrity Autographs
? Celebrity Addresses
? Celebrity Classifications
? Celebrity Interviews
? Movie Reviews
? Links to personal, official celebrity web sites.


Your sites provide a pictorial history as well as biographical information of the celebrity as related to the impact of nudity on their career. You have told us that your celebrity photo database provides enhancements that are related information as to the origin and informational description of the photos.
You also indicate that you have partnered with various entertainment and news agencies that provide an enviable database of news stories, covering every aspect of the music, movie and showbiz industries.

We note that you have developed and implemented special feature sections highlighting historic entertainment events; i.e. 40 years and 22 movies of the James Bond series and 37 years and 18 Star Trek TV and movie series, including a special section of "Daytime Soaps" featuring 24 of the top daytime soap opera series of all time, including the entire cast listing for each from the beginning to now.

You indicate that you are currently developing the following:
? Special feature section of 36 popular adult TV programs; highlighting plots, casts and related features including biographies, filmographies, etc.
? A "Survivor" feature with all 5 Survivor series contestants including photos and personal background information.


You apparently have implemented various methods of extensive research to obtain as much background information from public media sources to enhance your celebrity content area and your special feature sections highlighting momentous entertainment events.

We understand that it is your goal to enhance and promote all of the entertainment features available and link related web sites to create a wide range of newsworthy information and services


Thus, when considering the nature and content of the XXXCASH website, it appears that the use falls within both the news account and public affairs exemptions of Cal. Civ. Code § 3344(d).


2. Does XXXCASH?s use of celebrity images violate the common law of California as it relates to Right of Publicity?


Under California?s common law, a claim for infringement upon the right of publicity requires a showing of the following elements:

i) Use of the plaintiff?s identity;
ii) Appropriation of plaintiff?s name or like to defendant?s advantage; iii. Lack of consent; and
iii) Resulting injury.

Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417 (1983); BAJI No. 7.23 (8? ed. 1994).

The news account exemption codified in Cal. Civ. Code § 3344(d) is a defense not only to the statutory cause of action of 3344, but also to the common law cause of action. Eastwood v. Superior Court, 149 Cal. App. 3d at p. 421; New Kids on the Block v. News America Pub., Inc., 971 F.2d 302, 309-310 (9th Cir. 1992); Comment, BAJI No. 7.23 (8th ed. 1994) p. 318.
Thus, the defenses described in relation to the statutory right of publicity are equally applicable to the common law claim. As noted above, we believe these defenses are fully available to XXXCASH.