The Key to Being a Good Referee: The Call the Ninth Circuit Missed When Evaluating False Endorsement Claims
2015; The MIT Press; Volume: 64; Issue: 5 Linguagem: Inglês
ISSN
0094-4076
Autores Tópico(s)Law, Rights, and Freedoms
ResumoABSTRACTSociety is consumed with celebrities, and celebrity identity has pervasive power. We keep up with the Kardashians and judge singing with Adam Levine. If Doctor Oz recommends a weight-loss pill, we go out and buy it. If a burger restaurant is called Bobby Flay's, that's the hot spot to go eat. Celebrity identities are powerful brands that are subject to abuse by others who may incorporate a celebrity's identity into their product without permission. There are celebrity look-alikes and soundalikes. Celebrity likenesses have been appropriated to sell everything from cars to VCRs. Two bodies of law are turned to when there is unauthorized exploitation of a celebrity's likeness or persona. One, Section 43(a) of the Lanham Act, is a federal trademark statute, and the other is the common law right of publicity. Congress designed Section 43(a) to protect consumers from mistakenly believing that a celebrity endorsed a particular product, while the right of publicity centers on the celebrity's economic interest in his or her own identity.The interests that both the Lanham Act and the right of publicity are designed to protect must be balanced with the First Amendment interest in free speech. Freedom of speech is a widely and heavily protected constitutional right that encompasses free expression within various platforms, including videogames. If an individual merely states that he does not like Carmelo Anthony, this statement will be protected as free speech, and there are no countervailing concerns of consumer confusion or economic cost to Anthony. If an individual wrote a play about Carmelo Anthony's journey to becoming a basketball star, and Anthony had no involvement in creating the play, then countervailing concerns are present and must be balanced with the interest in free expression. This balancing of interests highlights an inherent tension: when should the broad constitutional right to free speech bow to a countervailing concern for false endorsement of products and a celebrity's right of publicity?The Ninth Circuit recently decided two cases dealing with this balance. Both cases concern the use of well-known football players' likenesses in a videogame series. One celebrity opted to bring suit under the Lanham Act, while the other chose the right of publicity. The two cases had very similar fact patterns, but the Ninth Circuit used different tests to analyze the claims, leading to opposite holdings. What was different about the prevailing plaintiff in the right of publicity claim? Is there a way to take the celebrity's and the consumers' interests into account without stifling free speech? What test should the Ninth Circuit, and other courts, use to evaluate Section 43(a) Lanham Act claims?This Comment advances the novel argument that the Ninth Circuit and other courts should use a new test, combining the transformative use test and a modified likelihood of confusion test when evaluating Section 43(a) Lanham Act claims. The proposed test provides an analysis that focuses on protecting free speech without annihilating the possibility of the balanced concerns prevailing. The test takes the artist's, consumers', and the celebrity's interests into account and mitigates the problems caused by having a lack of a federal right of publicity.INTRODUCTIONCelebrities have a powerful influence in society. The public is engrossed by what celebrities wear, say, and do, whether the focus is on how to diet like a particular icon1 or what lotion a star recommends.2 A celebrity's identity is a powerful tool that can be used to sway consumer purchases, regardless of whether the celebrity is affiliated with the product. A celebrity's identity can therefore be used illegally for financial gain at the expense of both the star and the consumer.Beyonce is an internationally renowned music artist.3 One of her song's lyrics state, My persuasion can build a nation, describing her potential influence over society. …
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