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"Lady Miss Kier" Hammered With $600,000+ in Attorney's Fees




Remember "Lady Miss Kier" (real name Kierin Kirby), lead singer of the band "Deee-Lite"? Deee-Lite had a big hit in 1990 with the video for their song Groove is in the Heart.

In July 2000, a representative of Sega Japan contacted Kirby and told her that Sega "was considering using one of several music videos or songs, including Groove is in the Heart, to promote" a video game called "Space Channel 5" or "SC5" in England and possibly Europe. Kirby was not interested and declined to cut a deal or give Sega permission to use her songs, likeness, or anything else.

Subsequently, Kirby discovered that Sega had released the game and that it included a dancing female character named "Ulala" who Kirby felt resembled her Lady Miss Kier character in several respects. Among other "signature" characteristics, Lady Miss Kier was known for saying "ooh la la," as she does while introducing herself in the Groove is in the Heart video. Kirby thought Sega's use of "Ulala" was an obvious rip-off of her signature "ooh la la," and noted several other apparent similarities between Ulala and Lady Miss Kier.

Kirby filed this lawsuit against Sega in Los Angeles in April 2003, asserting several causes of action, including one for misappropriation of likeness under Cal. Civil Code section 3344.

Unfortunately for Kirby, Sega was able to show that the game SC5, including the Ulala character, had been created and released in Japan between 1997 and 1999 (years before Sega contacted Kirby), and that the Japanese creators of Ulala -- who created her name, look and dance moves -- had never even heard of Deee-Lite, Lady Miss Kier, or Groove is in the Heart at the time they created Ulala.

Worse for Kirby, under the First Amendment and the California Constitution's right of free _expression, "[n]othwithstanding certain similarities, Ulala is more than a mere likeness or literal depiction of Kirby. Ulala contains sufficient expressive content to constitute a 'transformative work' under the test articulated by the [California] Supreme Court" in Winter v. DC Comics (2003) 30 Cal.4th 881 and Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387. The trial court granted summary judgment to defendants.

Still worse for Kirby, Civil Code section 3344, under which she sued (in part), states that "The prevailing party in any action under this section shall be entitled to attorney's fees and costs." Cal. Civ. Code Sec. 3344(a). Defendants requested these "mandatory" fees in the amount of $763,000, which the trial court reduced to an award of approximately $608,000. The Court of Appeal affirmed. Recognizing that this is a harsh result, the Court noted that the Legislature had unambiguously made the fee provision mandatory. "Whether the course is sound is not for us to say. (Citation) This is the course the Legislature has chosen and, until that body changes course, we must enforce the rule. The fee award was proper."

And worst of all, the Court of Appeal determined that Civil Code section 3344(a) also entitles the prevailing party to attorney's fees and costs on appeal, and remanded the case to the trial court to determine the amount of additional fees and costs to be awarded against Kirby for appealling the decision.

I'll bet Ms. Kirby (and other celebrities) will think twice before suing for "misappropriation of likeness" in California again anytime soon."

From LegalReader.com

this is bullshit. anyone seeing clips from the game can tell it's based on her and deee-lite was HUGE in Japan where sega is based AND "groove is in the heart" was released 9 years before this game. and who the hell hasn't heard "groove is in the heart" 10 million times?

Kier hasn't released any music since deee-lite folded in 1994. I hope this spurs her to release some music, tour and maybe reform Deee-lite.

consuelo, heidi and I rushed to best buy this morning and picked up the deluxe edition of the new Scissor Sisters album, Ta-Dah.

Like their fist album, this one is taking a bit to grow on me. However, there's a few great songs like "transistor", "I can't decide" and "kiss you off".

If ya'll want to buy it make sure you get the deluxe verison which comes in cool elevator packaging and has an extra cd with 5 songs and a remix of "I don't feel like dancing".

that is all.

11.99 at bestbuy this week only!

last night I was reading a book and it occured to me that I am getting dumber as I am getting older. or at least my mind is getting slower. Must be all thsoe drugs I didn't do.

Must read more books.

starring Sydney and Landon ?

I would think that anyone that knows me knows that I love Elvira, Mistress of The Dark. I never got to see her tv show in the 80's although I have seen some movies she hosted that were released on video. Some people don't get it but I think she's hilarious. I swear, she may have inadvertantly helped me survive small town high school.

Anyway, she just released a batch of Bad horror films she hosted in the early 80's and I am loving loving loving the ones I bought this weekend - although, mostly just for Elvira's bits where she pops in at (what would be) commercial breaks as these movies are real stinkeroo's. but then, what would you expect from movies with titles like "Wearwolf of Washington", "The Doomsday Machine", "Count Dracula's Great Love" and that all time favorite "The Devil's Wedding Night"!

Oscar Winners, these Ain't.

some great pictures set to an older song " placeb o Effect"

I'm glad the wretched hot summer is finally over and more liveable weather is upon us.
But really, Fall to me means Halloween ( fave holiday ) and Concerts!

Show's I'm doing in the next few months:


JOHNETTE NAPOLITANO ( of Concrete Blonde )9/30
SCISSOR SISTERS 10-1
LADYTRON 10/13
PET SHOP BOYS 11/5
DEATH CAB FOR CUTIE 12/9

Yippee Skippy !

my friend Danny passed away the other day.
He was an older asian gentleman that owned a chinese resturant here called "wok-n-grill". I made all my friends go there with me over the last 7 years or so and they all loved it ( except one cranky vegetarian ) and he was always there chatting us up. He over heard UM and I talking about Mason City once and it turns out he was raised there. small world.

Anyway, we used to hang out there all the time in 2001 and danny even asked us what to get for the jukebox. so, he got us lots of madonna, kylie, pet shop boys, erasure, etc. We eventually fizzled and didn't go there as a group much but I would stop in to get take out or just to chat with Danny every few weeks.

he was a kind, generous and caring gentleman. he always had a smile and never a bad word to say about anyone ( even when he should have ) and he has a wonderful supporting cast of family that ran his resturants with him. Danny also had a positive outlook and always gave sound advice. He liked to make fun of people but it was always in a poke in the ribs, just kidding kind of way. he had a great laugh.

I last saw him a couple of months ago. He had terrible gout and arthritis and he was working in the shop closest to his home in Ballard. I was pleased to introduce him to Kyle and he was glad that I had found someone. His back was in bad shape and I hated seeing him that way. But he was glad to see me and gave me a hug and said "it's always great to see you".

When my Grandma passed away I went to shops in mason city looking for a mason city magnet for Danny but I couldn't really find one.

Steve and doug and I went into the broadway wok and grill last night and I asked his daughter how she was doing. He died wednesday of a stroke. I was amazed at how his family went on with the show.

I'm crushed.

I will miss him.

Cheers, Danny. Here's to you and Thanks for the memories.

blogger hasn't been cooperating all week for me. now it seems to be but i'm no longer in the mood.

the Train has derailed and changed direction.

There were no injuries.

no film at 11 and no questions.

Labor Day Weekend:
o1. my parents cruised around a chain of lakes in Northern Minnesota.
02. I cat sat for Consuello's Cats. Landon/Insano is pictured.
03. Sequal to the artsy mall elevator shot.
04. Went of saturday night. TOmmy is pictures somewhere on the blurry dancefloor.

Below, my friend BLYSS performs Siouxsie's "green Fingers" at Bacon Strip.

Army Of Lovers are an insane swedish band that I discovered in college. I had read a review of their first album in a british magazine that mentioned them using "the Andy Griffith Show" Theme in one of their songs. I found their album in a bargain bin and I was hooked. How this ever got released in the US is a mystery. This is about as Euro pop house trash as you could get.

their videos are insane and they make no bones about being completley manufactured. "crucified" managed to get some airplay in the US ( like on "beavis and butthead" ) and they actually performed live on mtv. well, their version of live was lip syncing into toilet brushes.

I have a lot of great Cedar falls and Iowa city memories associated with this "band".

I discovered them in 1991 and they released their last single "hands up" in 2001. they also released a dvd of all their videos last year only in Sweden ( of course have it ! ) They are all kinda old now but I doubt we have heard the last of them. the mousey white guy, Alexander Bard, produces bands like Alcazar, Vaccum and Bodies Without Organs.

anyway, saturday night Tommy wondered what ever happened to them after I noted that a tranny at bacon strip kinda reminded me of Jean-Pierre ( the dark haired queen ).

Enjoy!



"CRUCIFIED" 1992


"ISRAELISM" 1993


"GIVE MY LIFE" 1996


"HANDS UP" 2001

It's strange when celebrities die.
I got all disturbed when I heard steve Irwin died.
Not that I worshipped him or anything but I always enjoyed watching him on animal planet. And when we were in SYdney last summer, it was obvious that he was a huge national figure there and highly revered.

Maybe it reminds me about how mortal I/we all are.
I don't know.

I remember Diana's death having the same effect. Seeing someone so much on tv and hearing about them often...who knows?

Or maybe it's because he stood for a good cause: conservation and defending animals and raising awareness on animals. CRIKEY ! the world needs more people like him.

Rest In Peace, Steve.