Sunday, November 12, 2006

Somewhere wandering loose around Mayberry is a loaded lawsuit

Alert reader Keith Apple pointed me to this story about Andy Griffith suing a man who changed his name to Andrew Griffith as part of a failed bid for the office of sheriff in southwestern Wisconsin. The reporting describes the lawsuit as involving copyright and trademark infringement as well as privacy (probably publicity) claims. There is no copyright in names or short phrases. The copyright claim thus makes no sense unless founded – as it could be – on campaign materials that are substantially similar to something from the Andy Griffith show. It’s possible that Griffith owns the copyright to the show, though it’s much less likely that a modern star would.

Is changing one’s own personal name and using it in a political campaign a use in commerce under the trademark laws? Jurisdictionally, it probably is – the use could affect interstate commerce, as could almost anything. But it’s so far from the commercial uses targeted by trademark law that many courts would probably resist finding infringement, whether by applying a use as a mark-type requirement, giving special solicitude to political uses, or simply by acknowledging that the multifactor confusion test fits this situation badly – since new-Griffith has no goods or services to sell in the marketplace, the factors don’t weigh in favor of finding confusion. If “Where’s the beef?” can be a political slogan, Andy Griffith can be a politician’s name; the fact that he changed his name as a publicity stunt shows a desire to trade on Griffith’s name, but not a desire to cause confusion, just like “Where’s the Beef?”

Right of publicity laws have no confusion requirement. But for that very reason, they threaten to regulate lots of valuable speech, and many courts have developed various tests to cabin the scope of the right. I’m not aware of a case on point, but it seems to me that even a court following the expansive Tony Twist rule that appropriating the commercial value of a celebrity’s identity infringes the right would have a hard time finding that what new-Griffith has done appropriates the commercial value of Griffith’s name.

Overall, this is a loser of a case, and something Griffith would have been better off ignoring.

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