Thursday, February 25, 2016

Right of Publicity

Publicity of one’s identity without permission frequently happens to sports figures, actors, and to possibly world record holders, including Hacky Sack world, records holders.  The latter persona is the type actually who filed a district court action in Illinois claiming invasion of privacy and false advertising.  As argued, a commercial ran showing that an individual accomplished a series of fantastic feats including the breaking of the Hacky Sack world record all done attributed to consuming an energy drink.
The plaintiff sued the company that ran the commercial asserting a violation of the State of Illinois Right of Publicity Act.  Similar acts at the state level span the country.  Invasion privacy is typically argued and in similar scenarios, false advertising as well as citing the Lanham Act.  The plaintiff in Martin v. Living Essentials, did just that, noting his annoyance that the commercial gave the impression that an energy drink enabled someone to break his Hacky Sack record.  He noted also that his feat was after countless hours and days to prepare to achieve such a record.  Foremost, he noted that his identity was used for the commercial without his permission.
Aside for the defendant filing a motion to dismiss arguing that the action was time-barred, the court before rendering its decision to grant the motion to dismiss, it, more importantly, addressed the reasons for it to be with prejudice.  It took judicial notice of the notations at the bottom of the commercial which stated a disclaimer to the effect that the commercial was disclaiming any representation of it being true events and that the performances were for comedic purposes.  The Court determined that the allegations in the context of the commercial along with the disclaimers and the statement of purpose for comedic effect rendered the plaintiff’s allegation unconvincing.[1]  Furthermore, the disclaimer was explicit in its statement of “Not proven to improve physical performance, dexterity or endurance”, and the court acknowledged it as a crucial element in its determination.
The plaintiff also argued that he was identified by means of the commercial referring to the Hacky Sack work record holder displayed an individual playing Hacky Sack who broke the Hacky Sack record by drinking the advertised energy drink.  While the defendant asserts that the plaintiff’s name was never used or his likeness or voice used, the plaintiff argues that the phrase “the record of Hacky Sack” identified him.  He also argues that the Right of Publicity Act covers “any attribute of an individual.”  The court deemed this to be too ambiguous to conclude that the plaintiff’s identity was used.   The court in this vein importantly noted that the commercial had not used the plaintiff’s identity which rendered him unable to pursue a false advertising claim.[2]  The court determined that the plaintiff did not have the necessary commercial interests to assert. For these reasons, it was dismissed with prejudice.
[1] See Schering–Plough Healthcare Prods. v. Schwarz Pharma, Inc., 586 F.3d 500, 513 (7th Cir. 2009).
[2] See Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014). “to come within the zone of interests in a suit for false advertising under § 1125(a), a plaintiff must allege an injury to a commercial interest in reputation or sales.”

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