State Doctrines

 

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States usually protect the name, image, and likeness of a celebrity.  States vary as to the specific boundaries of, and criteria for, protection.

Right of Publicity
 
 
Practice Problems

Question 2

Kream Jaffar is a famous basketball player.A large automobile company, General Engines (GE), creates a television commercial that refers to him.In the commercial, a voice asks, “Who holds the record for MVP the past three years?” Then the words appear on the screen, “Kareem Jaffar in 1991, 1992, and 1993.”Next, the voice asks, “Which car has received the Best Automobile Buy Award for the past three years?”Then the words appear with a picture image of the car: “The General Engine Butless Supreme!”

 

Question: Has GE infringed any rights of Kream Jaffar?

Question 3

Mort creates an advertisement with several faces of famous actors superimposed over clothing that Mort advertises.The ad states: “How would they look in our clothing?Much better!”Notably, the ad states in large print that none of the actors agreed to appear in the ad.

 

Question: Has Mort violated the actors’ right of publicity?

Answer to Question 2

Likely yes.  GE appears to have infringed Kream Jaffar’s right of publicity.  GE employed Jaffar’s name to advertise its automobile.  The commercial suggests Jaffar’s endorsement, even if not explicitly stated. 

Answers

Answer to Question 3

Yes.  Mort has used the actors’ images to promote his clothing.  The fact that he makes clear that the actors do not consent to his use does not excuse his action.  He has violated the right of publicity.

 
 
 
 
 
 
 

Reverse passing off occurs when a producer misrepresents someone else’s goods or services as his own.

Reverse Passing Off

The tort of passing off occurs when a defendant passes off a good or service as some else’s good or service.

The purpose of the tort of passing off is to protect the goodwill that is associated with a good or service of a particular entity.  It does not represent a property right.  To be liable for passing off, a defendant need not have necessarily used a mark in making a misrepresentation about his good. 

Passing Off

Answer to Question 1

Yes.  Assuming that Empire has trademark protection on the 1-800-CARPETS number, Shady probably is not liable for trademark infringement under the Lanham Act: Shady has made no use in commerce of that mark when it only answers the phone.  Shady is merely capitalizing on existing consumer confusion.  Nevertheless, Shady does not correct the caller’s misbelief about the identity of Shady.  Instead, Shady proceeds to service the customers as though Shady were Empire.  This is passing off.  Shady is representing its services as those of Empire.  

Question 1

1-800-CARPETS is the phone number for a carpet cleaning service, Empire Carpets (Empire), which is located in Utah.  Empire advertises its number extensively.  Empire’s competitor, Shady Carpets (Shady), is also located in Utah.  Knowing of Empire’s phone number, Shady registers a vanity number with the phone company that uses the local area code of Utah—801.  The phone number of Shady is 1-801-CARPETS.  Hence, only one number is different between the phone number of Empire and Shady.  Shady does not advertise its number.  Rather, Shady merely answers customer calls intended for Empire (but misdialed).  Shady proceeds to service those customers without disclosing its true identity.

Question: Has Shady committed any tort against Empire?

Two common law doctrines offer protection for commercial and personal interests related to identification: passing off and the right of publicity.