December 01, 2020 MEETING OF THE MINDS

Anything for Selenas? A Right of Publicity Case Study

Lizbeth Lopez and Scott J. Sholder

©2020. Published in Landslide, Vol. 13, No. 2, November/December 2020, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

American pop culture is pervasive and infectious, particularly the fascination with celebrity culture.1 Fans’ objectification of celebrity wealth and fame creates an aura of otherworldliness that separates celebrities from the average American.2 This idealization inspires younger generations to reach greater heights, and they often credit celebrities as their role models.3 This especially seems to hold true in the Latinx community, who use artists as a way to connect to their heritage and identity.4

Among the many famed Latin music artists, Selena Quintanilla stands out as a favorite for many.5 Despite her passing 25 years ago, Selena’s image continues to dominate contemporary pop culture, inspiring all generations, especially artists and creators.6 Recently, a lawsuit between Fúchila Fresheners, a small Latinx-owned business, and Selena’s father, Abraham Quintanilla, arose due to the creation of unauthorized car air fresheners depicting Selena’s likeness.7 This article discusses the legal intricacies in right of publicity lawsuits in California through the lens of this case.

The 25th Anniversary of Selena’s Tragic Death and Her Commercial Legacy

On March 31, 2020, 25 years after Selena’s death, fans all over the world honored her short but impactful career.8 The star’s passing launched her into posthumous stardom, largely due to her continuing popularity and the 1997 biopic starring Jennifer Lopez.9 Still topping the Billboard charts, the late singer remains one of the most influential Latin artists of all time, selling more than 60 million albums worldwide.10

Selena’s lasting pop culture influence is also arguably partly attributable to her father, Abraham Quintanilla, who keeps strict control over his daughter’s name, image, and likeness.11 As the administrator of Selena’s estate, Quintanilla regularly receives financial offers to use Selena’s postmortem publicity rights for the sale of licensed products and rights in her life story.12 Despite the potential to collaborate with many different brands and businesses, Quintanilla is very selective about granting the use of his daughter’s rights, only approving products or services deemed “high quality.”13 This “high quality” characterization is Quintanilla’s method to reap large commercial profits off of the Grammy winner’s image (which, as discussed herein, often translates to forgoing opportunities to work with minority artists and brands). Indeed, Quintanilla has made his monetary objectives clear, publicly stating that the singer’s estate does not make deals unless there is a high financial incentive from an offeror whose “compensation is commensurate with the exploitation and value” of Selena’s identity rights.14

Prior to her death, Selena had started branching out as a businesswoman by designing her own fashion line.15 But contrary to her principles, the Tejana superstar’s image has only been used by her father in connection with massive non-Latinx, non-female-owned corporations such as MAC Cosmetics, Forever 21, and Urban Outfitters.16 Quintanilla even refused to make a deal for the use of Selena’s rights in connection with Chris Perez (a Latino writer and his former son-in-law), until he succeeded in a legal battle in the Texas state and appellate courts to obtain profits from Perez’s project.17

Abraham Quintanilla’s Enforcement Efforts Appear Limitless

A Texas native and resident, Quintanilla holds Selena’s statutory postmortem right of publicity for 25 more years in Texas.18 Although the Latin music queen deeply respected her fans, over the past quarter of a century, her father has legally intimidated many fan-creators with cease and desist letters, including a Selena fan club website operator and many small businesses that sell uniquely designed shirts, keychains, and pins bearing Selena’s name or likeness.19

In 2019, Selena’s father continued his tactics by filing suit in California against Fúchila Fresheners, a small yet budding Latinx business selling car air fresheners bearing Selena’s likeness, for allegedly violating his late daughter’s state common-law and statutory right of publicity.20 Quintanilla claimed that his daughter’s image and associated catchphrase “Anything for Selenas” was unauthorized, causing the estate an unspecified amount of damages.21 In January 2020, Fúchila answered the complaint, asserting 14 affirmative defenses, including statute of limitations, laches, First Amendment, and lack of knowledge as to Quintanilla’s rights ownership.22 The case is currently pending resolution by jury trial set for March 2021 in Los Angeles.23

Will Quintanilla’s Legal Claims Succeed Again in California?

California does not permit postmortem right of publicity claims from any estate.24 This legislative choice was analyzed in a case brought by Princess Diana’s estate, Cairns v. Franklin Mint Co., which sought protection under California law because Great Britain, Lady Diana’s home country, lacked postmortem right of publicity laws.25 The Ninth Circuit Court of Appeals ruled that the California legislature had deliberately drafted the state’s postmortem right of publicity statute to prohibit the expansion of the law to non-Californians.26 Specifically, the Ninth Circuit determined that the statute’s provision, which grants relief for infringing acts that occurred directly in California, was not a choice-of-law provision but rather addressed the statute’s reach.27 By contrast, the circuit court clarified that the law of the deceased’s domicile at the time of death dictates a claimant’s ability to bring suit, not whether the deceased’s rights were violated in California.28

Like most rules, there is an exception. In the Golden State, if the deceased’s domicile recognizes a descendible right of publicity interest to the heirs, then a court could potentially entertain a non-Californian’s claim.29 Accordingly, California closed its doors to any estates whose claimant’s home state or country does not recognize an equivalent right, but it has not entirely excluded all in-state violations from out-of-staters.30 The plaintiff-estate bears the burden of proving that California’s publicity statute may grant them relief.31 While Quintanilla’s claims against Fúchila Fresheners in California appear to be barred by the statute, the Cairns interpretation of the law favors Quintanilla because Texas does devise right of publicity property to heirs.32

Defending against Quintanilla: Fúchila’s Selena Memorabilia Might Go Bidi-Bidi Bye-Bye

Fúchila Fresheners infringed upon Selena’s postmortem rights within the meaning of the statute by creating identifiable Selena merchandise for the purposes of selling the same without Quintanilla’s prior consent.33 Among the defenses plead by Fúchila, California courts have only engaged in a First Amendment and laches analysis.34 Thus, it is unclear whether or how the other defenses will survive the trial.

Freshener Production Could Be Crucial for California’s Single-Publication Rule

California has a two-year statute of limitations for right of publicity claims.35 Courts generally apply the “single-publication rule” for online or published material allegedly violating the common-law and statutory right of publicity by looking at the date the content first appeared on a website.36 This approach prevents a flood of publicity claims for each sale or delivery of a copy of the infringing content to a consumer.37 However, the “single-publication” date can be reset if the alleged violator republishes on the internet by directing the original website to a new audience or substantively adding, altering, or revising the original content on the website.38 As the online world grows in complexity, particularly on social media sites, the single-publication rule could be difficult to apply because creators control multiple content-generated platforms where they post in similar but slightly varied forms.39 Nonetheless, the single-publication issue can be resolved when the same or substantially identical content is reposted onto various websites so long as the content was not substantially modified, removed, reposted, or directed at a new audience to trigger a new statute of limitations.40

In the Fúchila Fresheners case, the defendant’s internet presence is well-documented, and its allegedly infringing air fresheners were last sold online in July 2018; Quintanilla filed his complaint on November 21, 2020.41 If Fúchila’s initial Selena image production was not reproduced, it might be able to avoid the claim even if it sold off the remaining stock years later.42 However, dictum from a concurring opinion of the California Supreme Court in Christoff v. Nestle USA suggests that Quintanilla could still recover on an otherwise untimely claim if Fúchila consciously and deliberately continued, renewed, or expanded production of the misappropriated Selena image during the defined statute of limitations.43 This will be an issue for discovery, and without Fúchila’s manufacturing records, there is no definitive answer at the moment.44

Laches Defense Is Defeated by Statute of Limitations

Fúchila Fresheners also asserted a laches defense, likely premised on the publicity gained through news features on Buzzfeed, Univision, NBC, and the Huffington Post, which arguably put Quintanilla on notice.45 Moreover, Quintanilla even conceded that Fúchila received media and consumer attention,46 yet he waited three years to sue. But while Quintanilla may have delayed in bringing suit, his claims are likely within the two-year limitations period assuming an exception to the single-publication rule applies, therefore eliminating the equitable defense.47 Even if the defense were available, it would likely fail because the most successful use of laches by a defendant in California involved a claim brought 20 years too late. In contrast, here, there is at most around three years from the initial sale of the Selena car scents and the filing of the complaint.48

Hybrid Balancing Test for First Amendment and Transformative and Fair Uses

Creators, like Fúchila, may challenge a right of publicity claim by asserting a First Amendment defense either if their work contains significant transformative elements or if the work’s value “does not derive primarily from the celebrity’s fame.”49 The California Supreme Court formulated a balancing test for transformative use weighing First Amendment and right of publicity principles, or “whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.”50 Thus, a successful defense must persuade a court that the infringing work is worthy of First Amendment protection because of its significantly transformative elements, and therefore is “less likely to interfere with the economic interest protected by the right of publicity.”51

While the California Supreme Court advised that the balancing test for right of publicity claims was not interchangeable with copyright law’s fair use defense, it adopted the first fair use factor, “purpose and character of the use,” to reconcile free expression and publicity rights.52 Additionally, California courts use at least five factors to determine if a work’s “purpose and character” is sufficiently transformative to secure First Amendment protection: (1) whether the “celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized,” or if the celebrity’s depiction or imitation is the sum and substance of the work;53 (2) whether the defendant’s work is “so transformed” that it has become their expression rather than the celebrity’s likeness;54 (3) whether creative elements or the celebrity’s literal and imitative depictions predominate in the creation;55 (4) whether the work’s marketability and economic value is primarily derived from the fame of the celebrity depicted (and thus, if the value of the work predominantly stems from the artist’s contributions, the work may be protected);56 and (5) whether the user contributes more than a trivial variation to the celebrity depiction, or if “an artist’s skill and talent is manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity” for commercial exploitation of the celebrity’s fame.57

Comparing Fúchila’s creation to past successful uses of the transformative defense is not promising. A ruling will likely determine that the custom portrait is no more than a trivial variation of Selena’s likeness as it is a literal recreation of the Latina singer boasting her iconic smile without any significant embellishment.58 Consequently, staying true to Selena’s image renders the car freshener insufficiently transformative for First Amendment protection, similar to other losing right of publicity cases such as replicating an athlete or lead singer for video games.59

Lack of Knowledge of Quintanilla’s Texas Rights

Fúchila Fresheners’ lack of knowledge defense60 about Quintanilla’s ownership of Selena’s right of publicity appears to be a first in California case law, and probably will not succeed, given that neither right of publicity statute in California contains a knowledge element.61 The elements solely require proving: (1) use of the plaintiff’s identity (living individual or estate), (2) appropriation of the plaintiff’s name or likeness used for commercial advantage, (3) lack of consent, and (4) resulting injury.62 To date, the only acceptable lack of knowledge defense is statutory, which exempts owners, employees, distributors, and publishers for sales of an infringing work when they lacked knowledge of the unauthorized use of such work.63

Will the Jurors Be Empathetic? The Challenge in Calculating Damages

What is even more uncertain than the success of the affirmative defenses is how the jury will calculate the damages owed to Quintanilla if he prevails on his claim.64 There are numerous factors that a jury has to consider when calculating damages in California, such as profits attributable to the infringement and actual damages (or a statutory fee of $750, whichever is greater), punitive damages, and the attorney fees and costs of the prevailing party.65

Given the unpredictability of damages, Fúchila’s owner, Ruben Dario Villa, may have an opportunity to connect to the jury to press for a lower award even if his company is found to be liable.66 Los Angeles jurors, especially those from minority communities, may empathize with the self-made small businessman whose brand has begun to garner recognition.67 There is a chance that jurors will find more in common with Fúchila’s owner, a first-generation college graduate trying to create his own American dream, than Quintanilla, a corporate CEO of Quintanilla Productions and high-powered estate administrator.68 Another factor favoring Fúchila is the current wave of support for small businesses due to the COVID-19 pandemic.69 But even with these advantages, the impact of empathy is never easily measured, and Fúchila faces an uphill battle legally, as discussed above.70

Conclusion

Fúchila Fresheners’ fate is in the hands of a jury, who have the difficult task of balancing the interests of a greatly respected artist’s legacy and a creator’s well-intended but infringing acts. Undoubtedly, inspirational role models like Selena are not disappearing from American culture, and neither are creators accommodating to consumer demand for celebrity-themed merchandise. Abraham Quintanilla will likely continue sending cease and desist letters, but if he wishes to keep Selena’s legacy and commitment to her Latinx community alive, Quintanilla would benefit from communication rather than litigation.

Endnotes

1. Edward Rothstein, CONNECTIONS; Why American Pop Culture Spreads, N.Y. Times (June 2, 2001), https://www.nytimes.com/2001/06/02/books/connections-why-american-pop-culture-spreads.html; Nora Turriago, The Dangerous American Obsession: Why Are We So Fascinated with Fame?, Huffington Post (Dec. 4, 2015), https://www.huffpost.com/entry/the-dangerous-american-ob_b_8721632.

2. Turriago, supra note 1.

3. See Rothstein, supra note 1; Turriago, supra note 1.

4. Rachel Bierly, Latin Music and Latino Identity, Panoramas Scholarly Platform (Oct. 4, 2018), https://www.panoramas.pitt.edu/art-and-culture/latin-music-and-latino-identity.

5. See generally id.

6. What Selena’s Life and Legacy Tell Us about Latinx Identity Today, World (Feb. 14, 2020), https://www.pri.org/stories/2020-02-14/what-selena-s-life-and-legacy-tell-us-about-latinx-identity-today.

7. See Quintanilla v. Fuchila Fresheners LLC, No. 19STCV42256 (Cal. Super. Ct. filed Nov. 21, 2019).

8. Rachel Hatzipanagos, Twenty-Five Years after Her Death, Fans Remain Devoted to Selena, Wash. Post (Mar. 26, 2020), https://www.washingtonpost.com/nation/2020/03/27/twenty-five-years-after-her-death-fans-remain-devoted-selena.

9. Id.; Raul A. Reyes, Selena Forever: Iconic Tejano Star’s Legacy Lives on 23 Years after Her Death, NBC News (Mar. 31, 2018), https://www.nbcnews.com/news/latino/selena-forever-anniversary-tejano-star-stays-relevant-iconic-beloved-n861521; Selena Quintanilla: The Tragic Latin Pop Icon Who Still Inspires, BBC News (Oct. 5, 2016), https://www.bbc.com/news/world-latin-america-37563550.

10. The 30 Most Influential Latin Artists of All Time, Billboard (Apr. 28, 2015), https://www.billboard.com/photos/6546212/most-influential-latin-artists?i=553955; Mike Cidoni, Record Crowd Attends Star Ceremony for Latin Icon Selena, Associated Press (Nov. 4, 2017), https://apnews.com/944afc1f16fc4622949f302e0a2c042b; Hatzipanagos, supra note 8.

11. Complaint at 4, Fuchila Fresheners, No. 19STCV42256.

12. Id.

13. Id.

14. Id. at 5.

15. Lou Haviland, Are Selena Quintanilla’s Boutiques Still Open?, Showbiz CheatSheet (Mar. 31, 2020), https://www.cheatsheet.com/entertainment/are-selena-quintanillas-boutiques-still-open.html (opening Selena Etc. boutiques in Texas); María Morales, Remembering Selena, People en Español (Mar. 10, 2020), https://peopleenespanol.com/chica/selena-death-25th-anniversary (gifting her shoes to a fan).

16. Hatzipanagos, supra note 8; MAC Selena La Reina, MAC, https://www.maccosmetics.com/mac-selena (last visited Oct. 28, 2020); Alexandria Rodriguez, Forever 21 Debuts Selena Collection “The White Rose” in Stores, Online, USA Today (Mar. 22, 2019), https://www.usatoday.com/story/life/style/2019/03/22/forever-21-debuts-selena-collection-the-white-rose-stores-online/3243980002; Selena Tee, Urban Outfitters, https://www.urbanoutfitters.com/shop/selena-tee (last visited Oct. 28, 2020).

17. See Perez v. Quintanilla, No. 13-17-00143-CV, 2018 WL 6219627 (Tex. App. Nov. 29, 2018); Complaint, Quintanilla v. Perez, No. 2016DCV-6147-E (Tex. Dist. Ct. Dec. 2, 2016); Veronica Villafañe, Chris Perez Loses Appeal to Dismiss Lawsuit by Selena’s Father; On the Hook to Pay All Legal Fees, Forbes (Dec. 1, 2018), https://www.forbes.com/sites/veronicavillafane/2018/12/01/chris-perez-loses-appeal-to-dismiss-lawsuit-by-selenas-father-on-the-hook-to-pay-all-legal-fees.

18. See Tex. Prop. Code Ann. §§ 26.001–.015; Complaint, supra note 11, at 4.

19. Yvette Montoya, Selena Quintanilla: What’s the Price of Fandom?, Hip Latina (Mar. 29, 2019), https://hiplatina.com/selena-quintanilla-latinx-creators; Jessica Lucia Roiz, Abraham Quintanilla Goes After Selena Fan over Copyright Infringement; Allegedly Threatens to Shut Down Fan Club, Latin Times (June 23, 2015), https://www.latintimes.com/abraham-quintanilla-goes-after-selena-fan-over-copyright-infringement-allegedly-324639.

20. Complaint, supra note 11, at 2–6; Selena’s Father Sues over Alleged Use of Late Singer’s Image to Sell Air Fresheners, NBC L.A. (Nov. 26, 2019), https://www.nbclosangeles.com/news/suit-over-use-of-selena-image/2242632.

21. Complaint, supra note 11, at 5–6.

22. Answer at 1–3, Fuchila Fresheners, No. 19STCV42256 (Jan. 17, 2020).

23. See Fuchila Fresheners, No. 19STCV42256.

24. Cf. Wash. Rev. Code § 63.60.010; Experience Hendrix L.L.C. v. Hendrixlicensing.com Ltd, 762 F.3d 829, 834 (9th Cir. 2014).

25. See Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002); Cairns v. Franklin Mint Co., 120 F. Supp. 2d 880 (C.D. Cal. 2000); Cairns v. Franklin Mint Co., 24 F. Supp. 2d 1013 (C.D. Cal. 1998).

26. Cairns, 292 F.3d at 1148–49; Cairns, 120 F. Supp. 2d at 885.

27. Cairns, 292 F.3d at 1145.

28. Cairns, 24 F. Supp. 2d at 1026–29.

29. Id. at 1029.

30. Cairns, 292 F.3d at 1149; Cairns, 120 F. Supp. 2d at 887; Cairns, 24 F. Supp. 2d at 1029.

31. Cairns, 292 F.3d at 1149.

32. See Tex. Prop. Code Ann. § 26.004; Complaint, supra note 11, at 5–6.

33. Complaint, supra note 11, at 6.

34. See Miller v. Glenn Miller Prods., 318 F. Supp. 2d 923 (C.D. Cal. 2004); Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797 (Cal. 2001).

35. Cal. Civ. Proc. Code § 339; Cusano v. Klein, 264 F.3d 936, 950 (9th Cir. 2001); Christoff v. Nestle USA, Inc., 213 P.3d 132, 137 (Cal. 2009); Lugosi v. Universal Pictures, 603 P.2d 425, 436 (Cal. 1979) (Bird, C.J., dissenting) (agreeing that the trial court properly applied a two-year statute of limitations for misappropriation claim).

36. Alberghetti v. Corbis Corp., 713 F. Supp. 2d 971, 977 (C.D. Cal. 2010); Christoff, 213 P.3d at 137; Shively v. Bozanich, 80 P.3d 676, 684 (Cal. 2003); Gregoire v. G. P. Putnam’s Sons, 81 N.E.2d 45, 48–49 (N.Y. 1948).

37. Christoff, 213 P.3d at 138.

38. See Cal. Civ. Code § 3425.3; Yeager v. Bowlin, 693 F.3d 1076, 1082 (9th Cir. 2012) (explaining the single-publication rule).

39. See Christoff, 213 P.3d at 137 (deciding whether printing a product label over five years was a single-integrated publication); Belli v. Roberts Bros. Furs, 49 Cal. Rptr. 625, 628 (Ct. App. 1966) (holding that six editions of the San Francisco Chronicle issued over a two-day period was a “single-integrated publication”); Robert A. Weikert, Supreme Court of California Revisits “Single Publication Rule” in Appropriation of Likeness Case, Nixon Peabody (Sept. 2, 2009), https://www.nixonpeabody.com/en/ideas/articles/2009/09/02/supreme-court-of-california-revisits-single-publication-rule-in-appropriation-of-likene.

40. See Canatella v. Van De Kamp, 486 F.3d 1128, 1135 (9th Cir. 2007) (posting a verbatim copy of a statement onto a different URL did not trigger republication); Belli, 49 Cal. Rptr. at 628; see also Yeager, 693 F.3d at 1083.

41. See Fuchila Fresheners (@fuchilafresheners), Instagram, https://www.instagram.com/p/BkvgB1Oh0ZM (last visited Oct. 28, 2020) (distributing Selena air fresheners with new vendor); see also Complaint, supra note 11, at 1.

42. Christoff, 213 P.3d at 139.

43. Id. at 143 (Werdegar, J., concurring); see Alberghetti v. Corbis Corp., 713 F. Supp. 2d 971, 979 (C.D. Cal. 2010) (barring untimely claims of misappropriated images on a website).

44. See Alberghetti, 713 F. Supp. 2d at 979; Christoff, 213 P.3d at 140.

45. See The #Fuchi Press Kit (2018), https://static1.squarespace.com/static/53fd944de4b075777f4d2705/t/5c2e5c9921c67c6b25611a5c/1546542240971/2018_FF_PressKit.pdf.

46. Complaint, supra note 11, at 5.

47. See Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 677 (2014); Miller v. Glenn Miller Prods., 318 F. Supp. 2d 923, 941 (C.D. Cal. 2004).

48. See Miller, 318 F. Supp. 2d at 943.

49. Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797, 810 (Cal. 2001).

50. In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268, 1273 (9th Cir. 2013) (quoting Comedy III Prods., 21 P.13d at 799).

51. Comedy III Prods., 21 P.3d at 808.

52. Id.; see 17 U.S.C. § 107.

53. Comedy III Prods., 21 P.3d at 809; e.g., NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268; Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2010); Winter v. DC Comics, 69 P.3d 473 (Cal. 2003); Comedy III Prods., 21 P.3d 797; No Doubt v. Activision Publ’g, Inc., 122 Cal. Rptr. 3d 397 (Ct. App. 2011); Kirby v. Sega of Am., Inc., 50 Cal. Rptr. 3d 607 (Ct. App. 2006).

54. Comedy III Prods., 21 P.3d at 809.

55. Id.

56. Id. at 810.

57. Id.

58. See, e.g., Hilton, 599 F.3d at 911; Comedy III Prods., 21 P.3d at 811; No Doubt, 122 Cal. Rptr. 3d at 411. But see Winter, 69 P.3d at 479; Kirby, 50 Cal. Rptr. 3d at 616–18.

59. See, e.g., In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268, 1276 (9th Cir. 2013); No Doubt, 122 Cal. Rptr. 3d at 411.

60. Lack of knowledge or “ignorance of the law” has a special dimension in minority communities such that they have minimal, if any, intellectual property education and knowledge of their rights. This significant issue is beyond the scope of this article.

61. See Cal. Civ. Code §§ 3344, 3344.1; Answer, supra note 22, at 3.

62. NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d at 1273.

63. See Cal. Civ. Code § 3344.1(l); Astaire v. Best Film & Video Corp., 116 F.3d 1297, 1299 (9th Cir. 1997).

64. See Matthew Savare, The Price of Celebrity: Valuing the Right of Publicity in Calculating Compensatory Damages, 11 UCLA Ent. L. Rev. 129, 150 (2004).

65. Cal. Civ. Code § 3344.1(a)(1); Savare, supra note 64.

66. See generally Douglas O. Linder, Juror Empathy and Race, 63 Tenn. L. Rev. 887 (1996).

67. See id.; Ruben Dario Villa, Fúchila Fresheners. Que Fresh!, Kickstarter (Jan. 5, 2015), https://www.kickstarter.com/projects/1321523476/fuchila-fresheners-que-fresh.

68. Linder, supra note 66, at 897 (sharing common experiences, values, language, behavior, age, or appearance with an observer produces a stronger empathetic response); Fúchila Fresheners Featured on NBC & Telemundo’s Comuniada del Valle with Damian Trujillo, Fúchila Fresheners Blog (Feb. 14, 2015), https://www.fuchilafresheners.com/blog/2015/2/14/nbc-telemundo-feature; Fúchila Fresheners Launches Online Store after Successful Kickstarter Campaign, Fúchila Fresheners Blog (Jan. 6, 2015), https://www.fuchilafresheners.com/blog/storelaunch.

69. See generally David Cohen, Instagram, Facebook Roll Out More Features for Small and Midsized Businesses, Adweek (May 11, 2020), https://www.adweek.com/digital/instagram-facebook-roll-out-more-features-for-small-and-midsized-businesses; Supporting Small Businesses on Instagram, Instagram (May 11, 2020), https://business.instagram.com/blog/supporting-small-businesses-on-instagram; Chanell Turner, How to Support Your Local Small Businesses during the COVID-19 Epidemic, Atlanta Small Bus. Network (Mar. 24, 2020), https://www.myasbn.com/articles/how-to-support-your-local-small-businesses-during-the-covid-19-epidemic.

70. Linder, supra note 66, at 896; Savare, supra note 64, at 132–42 (history of the right of publicity).

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Lizbeth Lopez is a JD candidate at Loyola Law School, Los Angeles. She is interested in practicing in the intersection of intellectual property and entertainment.

Scott J. Sholder is a partner with Cowan, DeBaets, Abrahams & Sheppard LLP and cochair of the firm’s litigation practice group. His practice focuses on litigation, counseling, and dispute resolution in connection with entertainment, media, and intellectual property matters.