The pro se plaintiff sued for violations of the Lanham Act and state right of publicity law. She performs as the “Banana Lady,” for which she has a federal service mark registration, and produces family events relating to children’s health and wellness. Defendants produce the Kids Expo, at which Conrad performed in 2008 in exchange for a vendor booth. They solicited her for 2009, to perform her show “Strong as I Can Be” on stage and buy a vendor booth, but she decided not to do so. Defendants sent out a postcard promoting the 2009 expo that used a photo of Conrad performing as the Banana Lady. Conrad hadn’t consented to the use of her image. When Conrad demanded a fee, defendants eventually apologized but said they had no money to settle with.
The court found that the facts alleged in the complaint could state a false endorsement/association claim, though recovery of damage would require a showing of actual consumer reliance and actual injury to Conrad or unjust enrichment for defendants. The court also allowed Conrad leave to proceed on a false advertising theory, because the parties could be seen as competitors in that they produce educational events for children; the false advertising allegations were weak, but it was unnecessary to identify her specific means of recovery under the Lanham Act at this stage.
Wisconsin recognizes a statutory and common-law right of publicity; the statute bars the advertising/trade use of a living person’s name, portrait or picture without written consent. The common law protects a person’s interest in the publicity value of her identity from unauthorized commercial exploitation. Conrad’s allegations were sufficient to state a claim. Presumably her compensatory damages are the licensing value of her picture in advertising, which may be limited. My guess: the attorneys will come out on top here.