Pro se right of publicity claim proceeds

Conrad v. Madison Festivals, Inc., 2009 WL 3018031 (W.D. Wis.)

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.