Appeals Court Affirms Dismissal Of Frank Sivero's Publicity Rights Suit Against 'The Simpsons'

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You may recall that in 2014, bit-actor Frank Sivero of Goodfellas semi-fame sued Fox over a recurring character that appeared on The Simpsons. Sivero says several writers for the show were living next door to him just before Goodfellas began filming, at a time he says he was creating the character of Frankie Carbone. He then claims that the writers for The Simpsons were aware of this work and pilfered it to create the character Louie, who is one of Fat Tony's henchmen. Because of this, he claimed that the show had appropriated his likeness, the character he was creating, and decided he was owed $250 million from Fox for all of this. For its part, folks from The Simpsons claimed that Louie is an amalgam of stereotypical mobster characters and a clear parody of those characters.In response, Fox asked a Los Angeles Superior Court to strike the complaint on anti-SLAPP grounds. In 2015, the court agreed, the ruling resulting from such memorable exchanges as:

"If I was a teenage girl and I had a crush on your client, would I be satisfied with a pin-up of the character Louie?" [Judge Rita Miller] asked."Probably," replied Sivero's attorney Alex Herrera. He argued the character's similarity to Sivero constituted a factual question fit for a jury. Judge Miller found her own evaluation of the character's similarity to Sivero relevant to whether the claims could withstand the SLAPP motion. She decided they could not.

Sivero acknowledges his likeness has been 'Simpsonized,'. To be 'Simpsonized' is to be transformed by the creative and artistic expressions distinctive to The Simpsons. This is precisely what the California Supreme Court meant in Comedy III when it said: 'an artist depicting a celebrity must contribute something more than a merely trivial variation, [but must create] something recognizably his own, in order to qualify for legal protection.' Contrary to Sivero’s argument, the fact other cartoon characters in The Simpsons share some of the same physical characteristics does not detract from the point these physical characteristics are transformative. Indeed, Sivero’s observation highlights the very point that the creative elements predominate in the work.

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Stupid Patent Of The Month: Buying A Bundle Of Diamonds

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This month's Stupid Patent shows what happens when the patent system strays outside its proper boundaries. US Patent No. 8,706,513 describes a "fungible basket of investment grade gems" for use in "financial instruments." In other words, it's a rating and trading system that attempts to turn diamonds into a tradeable commodity like oil, gold, or corn.Of course, creating new types of investment vehicles isn't really an invention. And patents on newfangled financial techniques like this were generally barred following Bilski v. Kappos, a 2008 Supreme Court case that prevents the patenting of purely financial instruments. Since then, the law has become even less favorable to abstract business method patents like this one. In our view, the '513 patent would not survive a challenge under Bilski or the Supreme Court's 2014 decision in Alice v. CLS Bank.Despite its clear problems, the '513 patent is being asserted in courtand one of the people best placed to testify against the patent may not be allowed to.The public's right to challenge a patent in court is a critical part of the US patent system, that has always balanced the exclusive power of a patent. It's especially important since patents are often granted by overworked examiners who get an average of 18 hours to review applications. But there are two types of persons that, increasingly, aren't allowed to challenge problematic patents: inventors of patents, and even partial owners of patents. Under a doctrine known as "assignor estoppel," the Federal Circuit has barred inventors from challenging patents that they acquired for a former employer. Assignor estoppel was originally meant to cover a narrow set of circumstancesinventors who engaged in fraud or bad dealing, for instancebut the nation's top patent court now routinely applies it to prevent inventors from challenging patents.Patent scholar Mark Lemley flagged this problem in a 2016 paper, noting assignor estoppel could be used to control the free movement of employees or quash a legitimate competitor. "Inventors as a class are put under burdens that we apply to no other employee," he wrote. "If they start a company, or even go to work for an existing company in the same field, they will not be able to defend a patent suit from their old employer."In this case, the Federal Circuit's expansive view of assignor estoppel may prevent a person who owned just a fraction of a patent from fighting back when that patent gets used in an attempt to quash a competing business.Despite the fact that this gemological trading system should never have been granted a patent, so far, it's being successfully used by its owner to beat up on a competitorand the competitor could be barred from even challenging the patent by assignor estoppel.

Competing Diamond Companies

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