- Hoffman v L.A. Magazine, 33 F. Supp. 2d 867 (C.D. Cal. 1999)
The Appellant published an altered photograph of the Appellee among several other photos in its magazine without his consent. They labeled the image in association with the brand of the Appellee. The Appellant also failed to seek permission from the photograph’s copyright holder, who were Colombia pictures. The Appellee then complained to the Appellant’s parent company Capital Cities, Inc “A.B.C.” to publish the altered photograph. However, A.B.C. moved the case to federal court, where the Appellee added the Appellant as a defendant. The district court entered the judgment in favor of the Appellee. It awarded him compensatory damages and punitive damages. It also held that the parent company was not liable for the Appellant’s actions. The Appellant filed this appeal.
Whether the altered photograph misappropriated the Appellee’s name and likeness in violation of the California common law right of publicity, the California statutory right of publicity, the California unfair competition statute, Business and Profession Code and the federal Lanham Act?
The district court’s decision was reversed because there was no actual malice in publishing the altered photograph and that the Appellee had failed to show clear and convincing evidence of actual malice. Thus, judgment was entered in favor of the Appellant.
The right to publicity grants an individual the exclusive rights to the commercial use of his or her identity without prior consent. It is awarded to individuals and celebrities. Under California state law, it is considered an intellectual property right, and its infringement is regarded as a commercial tort of unfair competition. It dramatically conflicts with the First Amendment, which protects the freedom of speech. Thus the court uses the doctrine of Commercial speech to resolve this conflict. A public figure may recover damages for noncommercial use from a media organization by proving actual malice. The court held that the altered photograph wasn’t commercial speech. The picture was intended to spark interest among the masses. It took the nature of a public interest matter protected under the First Amendment for noncommercial speech. The court noted that the photo was not for malicious purposes as the audience could tell that the image was altered.
2. Heres Johnny Portable Toilets, 498 F. Supp. 71 (E.D. Mich. 1980)
The plaintiff is the host and star of a popular show, “The Tonight Show.” He also appears as an entertainer in nightclubs, theaters and other media. Since the show’s start, he has been introduced on the show each night with the phrase “Here’s Johnny.” This phase has been associated with Carson by a substantial segment of the television audience. The defendant also uses the same name in the business of renting and selling portable toilets. The defendant was aware that the words were by the plaintiff as the introductory slogan for the show. The plaintiff brought a suit against the defendant alleging unfair competition, trademark infringement under federal and state law, and invasion of privacy and publicity rights. They sought damages and an injunction prohibiting any further use of the phrase “Here’s Johnny” as a corporate name or connected with the sale or rental of its portable toilets. This appeal was then filed.
Whether the defendant’s use of the phrase violated the plaintiff’s right to publicity, which resulted in unfair competition, invasion of commercial rights or right of privacy, deceptive advertising and joint law trademark infringement?
The right of publicity is that a celebrity has a protected pecuniary interest in the commercial exploitation of his identity. If the celebrity’s identity is commercially exploited, there has been an invasion of his right whether or not his “name or likeness” is used. The plaintiff’s complaint was dismissed. The court found that the plaintiff failed to show that their right to publicity had been invaded.
An individual has the right to publicity, which allows them to control their identity’s commercial use. The court examined the likelihood of confusion concerning the use of the phrase by the defendant. If the product was likely to be associated with the general public’s plaintiff, thus causing a likelihood of confusion. The same standard was used to examine the joint law trademark infringement and deceptive advertising claim. To establish a chance of confusion, courts have looked at several aspects, which are: 1. strength of the plaintiff’s mark; 2. relatedness of the goods; 3. similarity of the characters; 4. evidence of actual confusion; 5. marketing channels used; 6. likely degree of purchaser care; 7. defendant’s intent in selecting the mark; 8. likelihood of expansion of the product lines.
3. White v Samsung Electronics Inc., 971 F.2d 1395 (9th Cir. 1992)
The Defendants, Samsung Electronics America, Inc. (Samsung) and David Deutsch Associates, Inc. (Deutsch), advertised without Vanna white’s consent. The advertising agency created an ad that featured a robot with the “likeness” of the complainant. The complainant did not consent to the ads, nor was she paid, unlike other celebrities featured in the ads. The complainant brought an action against the defendants for the infringement of her copyrights under the civil code, the California common law right of publicity and the Lanham Act. The court granted summary judgment in favor of the defendants. The complainant filed for an appeal.
Whether the Appellee violated the Appellant’s rights by appropriating her likeness in their advertisements?
The appellate court affirmed in part and reserved the district’s court decision that the Appellee did not use the Appellant’s likeness. The court held that the Appellant did not provide enough evidence that any consumer confused the robot with her identity.
The Appellant’s claim went to the jury in which they found it unreasonable that the robot was a likeness of the Appellant within the California Civil Code. Therefore the right to privacy wasn’t infringed. They also found that based on the element’s of common law right of publicity, which is as follows: (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of the plaintiff’s name or likeness to the defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury were not met since Samsung did not improperly use the Appellant’s identity. However, on the claim under the Lanham Act, the court found that the trial court had erred in granting the Appellant summary judgment. In respect of this claim, they held that the Appellant had not established actual confusion or deception of the general public since no evidence was provided for this.
4. Jordan v. Jewel Food Stores, Inc., 10 C 340 (N.D. Ill. Aug. 20, 2015)
In 2009, when Michael Jordan was inducted into the Basketball Hall of Fame, Sports Illustrated published a commemorative issue devoted to celebrating his career. At the publisher’s request, Jewel designed a page for the problem that featured a pair of basketball shoes with 23, the number Jordan wore for most of his career, on the tongue of each shoe. This issue was sold instead of the regular supply to the subscribers. Jordan then filed a lawsuit against Jewel for the violations of his intellectual property rights under the filed this lawsuit against Jewel in Illinois state court alleging violations of the Illinois Right of Publicity Act, 765, the Illinois Consumer Fraud and Deceptive Business Practices Act, 815, Competition. Statute the Illinois common law of unfair competition; and the federal Lanham Act, 15 U.S.C. § 1125. He sought $5 million in damages, plus punitive damages on the state-law claims and treble damages on the Lanham Act claim. Jewel removed the case to federal court.
Could the publications make the Jewel violated Jordan’s right to publicity and his copyrights, which resulted in unfair competition?
The court held that Jewel’s ad in the commemorative issue qualified as commercial speech, protected under the First Amendment and thus bars Jordan from proceeding further with the suit.
An individual has the right to publicity, which empowers them to prohibit others from the commercial use of their identity without permission. This right conflicts with the right to freedom of speech, which is protected by the First Amendment. The court had to examine whether the commercial address resulted in a commercial transaction. The court relied on three tests. First, whether the speech was an advertisement, suppose, it favored Jewel because the grocery chain did not pay money to run the page, even though it agreed to display the magazine in its stores secondly, whether the page did not refer to a particular product or service. Finally, whether there was an economic motivation, the district court held that Jewel’s page did not propose a commercial transaction because it focused “not on Jewel or its particular products and services, but on Jordan.
5. Ryan Hart v Electric Carts, Inc. – 717 F.3d 141 (3d Cir. 2013)
In 2009, Appellant Ryan Hart (“Hart”) a football player brought suit against Appellee Electronic Arts, Inc. (“E.A.”) for allegedly violating his right of publicity. The Appellee had reportedly used his likeness in their NCAA Football series of video games without his consent. He claimed that the quarterback of the video game had distinctive features that matched his unique attributes. The district court granted summary judgment in favor of the Appellee because the Appellant’s likeness was protected under the First Amendment. This decision was appealed.
Whether the use of the Appellant’s likeness resulted in the violation of the right to publicity by the Appellee?
The appellant court held that the games at issue did not sufficiently transform Hart’s identity to sustain the right of publicity claim since it did not meet the Transformative Use Test. The court reversed the trial court’s summary judgment and remanded it for further proceedings.
The court examined the test to determine whether the Appellant’s right to publicity was violated. The court held that the public right of the Appellant outweighed the First Amendment protection. The court evaluated this right by using three tests: the predominant use test, the Rogers test, and the transformative test. First, The Rogers test examined whether the challenged work was relevant and whether the title resulted in the public being misled. Secondly, the predominant use test looked at where the product gets no First Amendment protection if it exploits the commercial value of an individual’s identity. Thirdly, the transformative use test examines whether the product that embodies the celebrity’s likeness is transformed that it has become the Appellee’s expression rather than the Appellant’s likeness. The court found that only the transformative use test could be relied upon in this case since the later tests resulted in errors. It thus relied upon the transformative test to make its decision. The court noted that video games are protected under the First Amendment. There was a need for both the right to publicity and the freedom of expression. The court found that the avatar in the video games did not satisfy the Transformative use test.
Hoffman v L.A. Magazine, 33 F. Supp. 2d 867 (C.D. Cal. 1999)
Heres Johnny Portable Toilets, 498 F. Supp. 71 (E.D. Mich. 1980)
White v Samsung Electronics Inc., 971 F.2d 1395 (9th Cir. 1992)
Jordan v. Jewel Food Stores, Inc., 10 C 340 (N.D. Ill. Aug. 20, 2015)
Ryan Hart v Electric Carts, Inc. – 717 F.3d 141 (3d Cir. 2013)
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