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Happy-little-tree painter's right of publicity at issue

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

We recently told readers about a lawsuit filed by Car-Freshner Corporation -- the owner of the trademark for the iconic tree-shaped car air fresheners -- against Bob Ross Inc., called BRI, and its merchandiser for selling air fresheners for vehicles also in the shape of trees. Bob Ross was the famous landscape painter who taught viewers how to paint on television. He was known for telling viewers to mask mistakes using "happy little trees."

Car-Freshner alleged that BRI's air fresheners infringed Car-Freshner's trademark on its tree-shaped fresheners.

Painter's son files suit

Now, Bob Ross is in the intellectual property news again. His son, Robert Ross, sued BRI through Robert's company RSR Art, LLC, alleging that RSR Art, and not BRI, the company his parents and others had created, owned the rights to use his deceased father's intellectual property, including his right of publicity. The right of publicity is the right to use a person's image, voice, persona, name and other identifying aspects of the person.

Robert Ross was not successful in his lawsuit, which was filed in federal court in Virginia.

The back story

During his lifetime, Bob Ross founded BRI to promote himself commercially. He gave BRI permission to procure registration of five trademarks on his likeness and name. Bob consented to BRI selling merchandise featuring his persona as well as granting licenses to other parties to use it.

Shortly before his death, Bob created a trust and named himself as trustee. An amendment to the trust said that Bob as trustee "shall assign" the interests in his intellectual property to his brother and Robert Ross. Bob instead assigned these interests to himself. A retroactive assignment to the brother and son was executed in 2017, years after Bob's death.

After Bob died in 1995, BRI continued to create and market Bob Ross merchandise. In 1997, the estate and trust signed a settlement agreement with BRI affirming that all rights to Bob's intellectual property belonged to BRI.

In 2016, Bob's brother transferred his rights to Bob's intellectual property to son Robert. The brother as trustee later transferred these rights to RSR Art (Robert's company). Shortly thereafter, the brother issued a retroactive transfer of those rights to himself and Robert.

In his lawsuit, Robert through RSR Art alleged that BRI had misappropriated Bob Ross's right of publicity and made false representations in selling Bob Ross products. The suit also asked that BRI's trademarks be cancelled.

Court's conclusions

The court granted summary judgment to BRI because it concluded that RSR Art did not own Bob's intellectual property rights and because Robert and his company had filed their suit too late. The evidence showed that Bob Ross had given full rights to his right of publicity and other intellectual property to BRI. Because he no longer owned the intellectual property, he did not have the power to transfer it to the trust he later created. In addition, the settlement agreements confirmed that BRI owned all rights. 

The case is available on Westlaw at 2019 WL 1460873.

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