Martin v. Living Essentials, LLC, 2016 WL 374142, No. 15 C 01647 (N.D. Ill. Feb. 1, 2016)
Ted Martin, who holds the world record for most consecutive kicks in hacky sack (no knees, no partner) sued for invasion of privacy and false advertising based on a television commercial in which an actor claims to have accomplished a series of seemingly impossible feats, including mastering origami “while beating the record for Hacky Sack,” under the influence of an energy drink. The court found that the ad “is clearly a comedic farce and in no way trades on Martin’s identity.”
The ad, apparently part of 5-hour ENERGY’s “The Last Five Hours” series, shows an actor claiming that “in the last 5 hours” he: disproved the theory of relativity; swam the English Channel and back; found Bigfoot; and mastered origami while beating “the record for Hacky Sack,” all because he took a 5hE shot. Mouseprint at the bottom of the screen says, “For comedic purposes only. Not actual results[,]” and “Not proven to improve physical performance, dexterity or endurance.” Martin claimed that the hacky sack statement was a false representation of fact and an appropriation of his identity.
The court first found that the one-year statute of limitations for right of publicity claims in Illinois barred the claim, given the complaint’s statement that the ad came out soon after Nov. 16, 2012, and that the complaint was filed in February 2015.
Even if the claim weren’t time-barred, it couldn’t win. Martin’s argument was that, by claiming that the record holder for hacky sack used 5hE to set the record, the ad said that Marin used 5hE. Sadly, Illinois law covers the unauthorized use of “any attribute of an individual.” But the court nonetheless found that “the record for Hacky Sack” was far too ambiguous to identify him. There are many kinds of hacky sack records, and the ad shows a man kicking two hacky sacks, not one; the Guinness World Record book lists 14 different records, and the ad doesn’t claim any particular one.
But all of this misses the more fundamental point. The Commercial is a joke, a comedic farce. The claims it makes are not intended to be taken as true—and to the extent that there could be any doubt on that score, the commercial includes a clear disclaimer advising the most gullible among us that these are “not actual results.” No one could watch the Commercial and reasonably conclude that the product spokesman actually holds “the record for Hacky Sack” ….
And anyway, the actor claimed to have done a number of other improbable things that didn’t identify Ted Martin.
Martin neither claims to have done these other things nor explains why anyone would believe that, in addition to unrivaled skill at keeping a footbag aloft, he possesses genius surpassing that of Einstein, twice the endurance of Diana Nyad, and hunting skills so refined that he is able to locate even mythical creatures. The Commercial’s implication is to the contrary: whoever this remarkable human may be, he is someone other than Ted Martin (or Einstein, Nyad, or the biggest of big-game hunters, all of whom the Commercial portrays as being left in the wake of anyone who might consume a dose of 5HE).
Thus, the court cautioned, “defectum humoris non curat lex—the law does not reward humorlessness.” No reasonable person could find a use of Martin’s identity. (Query: could a reasonable person find a use of Einstein’s identity?)
The Lanham Act claim failed for the same reason: it was a joke. Also, without any use of Martin’s identity, Martin failed the Lexmark test for statutory standing, though this was a non-jurisdictional argument that could be, and was, waived by defendant’s failure to raise it.
Living Essentials argued that its claim was ambiguous because it wasn’t clear which hacky sack record the actor claimed to have broken. The court rejected this claim, and rightly so: whatever records there were, the actor had broken none of them; the claim was literally false in that sense. But there was no way that a reasonable person could take that false claim literally; it was a humorous exaggeration posing no risk of consumer deception, “better described as farce than mere puffery.” Martin thus couldn’t plausibly allege consumer confusion that injured him. He didn’t identify lost endorsement opportunities (he had no such deals) and his emotional angst didn’t count. Even if his record had commercial value, it would be among “Hacky Sack cognoscenti,” but Martin didn’t allege that those people would be misled.