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September 24, 2011
Gilbert Arenas' Tweets Sinks His Motion to Enjoin "The Basketball Wives" -- Arenas v. Shed Media
[Post by Venkat Balasubramani]
Arenas v. Shed Media, CV 11-05279 (C.D. Cal.; Aug 22, 2011)
Arenas is a basketball player for the Orlando Magic. He goes by various nicknames, including "Agent Zero, Agent Arenas, and Hibachi." Arenas and Laura Govan were once in a relationship and have four children together. Shed Media produces the "Basketball Wives" television series, which centers around a cast of women, "most of whom have or have had a romantic relationship with a professional basketball player." Govan was set to appear in "Basketball Wives: Los Angeles," a spinoff of "Basketball Wives." Arenas moved to enjoin the broadcast and publicity around Basketball Wives: Los Angeles. He principally brought claims under the Lanham Act and under California's publicity statute.
The court notes that it's unclear as to whether the show will use and appropriate Arenas' identity. Arenas conceded that Shed Media "[took] care to avoid explicit reference to [Arenas'] name in the advertisements." Shed Media tried to argue that there's no publicity rights issue because the show would not discuss Arenas by name and any reference would be in reference to Govan's relationship with a certain unnamed basketball player. The court rejects Shed Media's argument, finding that it's inevitable that Arenas would come up in the show, either by name or by implication. The court then moves on to the two available affirmative defenses: (1) transformative use and (2) the "public interest" defense.
The court finds that Shed Media is likely to succeed on its transformative use defense. According to the court, the focus of the show is on "women who have or have had relationships with basketball players" rather than "the players themselves." The show is not using Arena's likeness to sell or endorse unrelated products or services.
The court also found that Shed Media would be likely to prevail on the "public interest" defense. This turned on whether Arenas' life is a matter of "public concern," and Arenas argued that his personal life and relationships were not a matter of public concern. The court disagrees, pointing to Arenas' Twitter feed for the proposition that Arenas has himself publicized many mundane details about his life (e.g., "dont u hate waking up doing the same thing..wash face..brush teeth..pee..take shower (well sum of us)...put on clothes...eat...etc.").
The court characterizes Arenas' trademark claim as "muddled." (The court doesn't discuss the issue of whether Arenas' name, as a personal name, is entitled to trademark protection at all.) There's no possible confusion between the title of the show and any of Arenas' marks. Arenas also argued that Shed Media's use of his name in the show itself constitutes infringement. The court disagrees, saying that Shed Media would readily have a "nominative fair use" defense available (citing to Toyota Motor Sales v. Tabari). It would be virtually impossible for the show to refer to Arenas without actually mentioning his name. Additionally, any discussions Arenas' ex would have in the press would not necessarily suggest endorsement: "common sense suggests that a celebrity may not agree with his ex-girlfriend's opinion of him."
Having found that Arenas is unlikely to prevail on his claims, the court does not need to address the issue of whether he will be irreparable harm, but it touches on this issue anyway. Arenas argued that the show is one that "prides itself on its coarse brand of drama" featuring "cat fights" and "infidelity issues," and the association between the show and Arenas' brand would lessen his reputation. The court disagrees, again turning to Arenas' Twitter feed and his own statements:
Shed Media provides a treasure trove of newspaper articles about and tweets by Arenas that, taken as a whole, convince the Court that Plaintiff's reputation will suffer no serious blow if BWLA airs as scheduled. For example, to paraphrase Shed Media, it is difficult to see how an association with 'cat fights' will tarnish Arenas' reputation when he has been publicly associated with potential gunfights. [Ouch!] Arenas made national headlines at the beginning of 2010 over an incident in the Washington Wizards locker room in which he drew a gun on a teammate during a dispute over a gambling debt, and ultimately pled guilty to carrying a pistol without a license. Arenas has publicized on Twitter his views of women and other groups--opinions that would be characterized by many, if not most, people as crude and offensive.
Moreover, Arenas has already associated himself with the show by tweeting directly or indirectly about Govan's appearance on it. In these tweets, Arenas expresses his opinion that he "doesn't care what Govan does" because "if she gets a job he pays less money to her." According to Arenas, most basketball players do not know that (1) "they" (presumably ex-wives and ex-girlfriends) cannot lie about basketball players on television because the players can sue the show; and (2) the basketball players pay less money if "they" have a job.
Then there's my personal favorite of Arenas' comments:
Arenas opines that he 'care[s] more about [watching people] plank [i.e., lie prone] th[a]n my ex on tv.'
Ultimately, the court blocks Arenas' attempts to shut down the show. To add insult to injury, the court grants Shed Media's anti-SLAPP motion.
The court's ruling paves the way for the show to discuss aspects of Arenas' life as they relate to Govan. The tenor of the ruling is that, in this day and age of hyper-focused attention on the lives of celebrities, some discussion of this nature has to be tolerated and the fact that a reality show may seize on this is not something a celebrity can prevent by asserting his or her personality rights. Arenas' trademark claims seemed fairly weak, and while it's not quite on par with the 1-800 GET THIN v. Hiltzik case which Eric blogged about last month, the court makes clear that the show has some breathing room to refer to Arenas without running the risk of consumer confusion. Finally, we're left with the classic situation of a modern litigant making an argument that's inconsistent with statements he or she said online.
NB: this isn't the only dispute around Basketball Wives, Los Angeles. Chris Bosh sued Allison Mathis, his former paramour and the mother of his children to block her appearance on the same show. The court (same judge) granted Mathis' motion to dismiss for lack of personal jurisdiction. You can access that order here.
THR (Eriq Gardner): Judge Rejects Gilbert Arenas' Attempts to Block VH1's 'Basketball Wives' (Exclusive)
Posted by Venkat at September 24, 2011 10:12 AM | Publicity/Privacy Rights