Center for Internet Law – Portland

Recent Legal Developments

Celebrity Publicity Rights

A.V.E.L.A. v Estate of Marilyn Monroe. U.S. District Court-New York. 2015 WL 5507147 (2015).
AVELA held liable under New York law on claim of implied “false endorsement” of AVELA products by deceased celebrity Monroe.

AVELA filed action for declaratory judgment against MM estate to uphold AVELA’s right to license and sell products bearing images of MM. MM Estate counterclaims that AVELA has falsely implied MM Estate’s endorsement of products licensed and sold by AVELA. Case decided under New York law which, unlike California, does not perpetuate publicity rights of a deceased celebrity beyond their death. Court affirms, however, that New York law “recognizes that celebrities hold a trademark-like interest in their name, likeness, and persona that may be vindicated through a false endorsement claim.”

Court rules MM Estate has alleged a false or misleading representation of fact and that New York law allows false endorsement claims on behalf of a deceased celebrity. For such a claim to be upheld, however, the court adds, requires showing of actual consumer confusion, which is not required in right of publicity claims. Affirms cause of action, similar to right of publicity violation, on behalf of estates of deceased celebrities, in states that do not extend rights of publicity beyond death. Court rules as well MM Estate has adequately alleged concurrent claims for “Marilyn Monroe” trademark dilution and intentional interference with prospective economic advantage.

Rosa and Raymond Parks Institute v. Target. U.S. District Court-Alabama. 90 F. Supp. 3d 1256 (2015).
Court holds Target’s sale of product commemorating civil rights movement and containing Rosa Parks’ image not violation of her publicity rights because Target’s act, even though commercial, deemed protected expression under First Amendment.

Target sells unlicensed commemorative plaque bearing image of Rosa Parks. Parks Institute brings claim for violation of right of publicity, misappropriation, and unjust enrichment. Court holds, however, that the, “scope of a matter of legitimate concern to the public is not limited to ‘news’… (but) extends also to the use of names, likenesses, or facts in giving information to the public for purposes of education, amusement, or enlightenment, when the public may reasonably be expected to have a legitimate interest in what is being published.” In a notably broad expansion of applicable constitutional law, and despite a lack of specifically on-point precedent, Court holds Target’s sale of the collage-style plaque commemorating civil rights movement, and containing Parks’ image, is protected by First Amendment.

Dryer v. National Football League. U.S. District Court- Minnesota, 55 F. Supp. 3d 1181 (2014).
Court holds football players’ publicity rights not violated because NFL promotional/historical film, containing footage of them, aired for historical and not advertising purposes.

NFL promotional/historical films include footage of Plaintiff NFL players in past football games. Court holds these films not advertising for NFL because television networks pay NFL for right to air films rather than NFL paying to air them. Court holds  films are “history lesson of NFL football”, thus not commercial use by NFL of images of players in game footage. Because films held to not be commercial speech by NFL but instead “equivalent to sports news reports”, Court finds Defendant NFL entitled to First Amendment free speech protection.

Court chooses not to address that games shown are from many years prior and thus not current sports news footage. Limits publicity rights of Plaintiffs in favor of “non-commercial speech rights” of Defendant. Places tighter bounds on publicity rights. Court holds claim for violation of publicity rights will only be sustained if work involved is used for advertising and not instead an “expressive work.”

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