7th Circuit affirms rare right of publicity loss based on ad

Martin v. Living Essentials, LLC, No. 16-1370, --- Fed.Appx. ---- (7th Cir. Jun. 30, 2016)

The Seventh Circuit knocked this affirmance out quickly—here’s my discussion of the Jan. 2016 district court decision.

Guinness World Records lists Johannes “Ted” Martin as the open singles champion for consecutive kicks of a football; his record has stood since 1997. A 2013 Living Essentials energy shot ad featured “an actor who boasts that in just five hours—all because of 5-hour ENERGY—he disproved Einstein’s theory of relativity, swam the English Channel twice, found Bigfoot, and ‘mastered origami while beating the record for Hacky Sack.’ The actor, not to be mistaken for the 56-year-old Martin, appears to be folding an origami animal while kicking two footbags, not one.”

Martin contended that the reference to “beating the record” was a reference to him, and thus an unlawful commercial use of his identity, also tarnishing his reputation by suggesting that his record stemmed from performance-enhancing drugs.  The district court found that the ad was puffery, but Martin argued that he was bringing a false association/endorsement claim. Citing the execrable White v. Samsung, the court reasoned that, “With advertising, even a parody of a celebrity can trigger liability; the critical question is whether consumers are likely to be confused and believe that the aggrieved party endorses or approves of a product.”

The court of appeals found that Martin’s theory was “not reasonable.”  “[W]e cannot imagine how this ad would confuse anyone into thinking that Martin himself endorses 5-hour ENERGY or that his use of the caffeinated drink explains a record set before the product came to market.”  (But it’s plausible that consumers would think that Vanna White endorsed Samsung because a letter-turning blonde robot appeared in its ads?)  The mention of Hacky Sack was “sandwiched between obviously absurd achievements.”  Moreover, “the actor cannot be accused of impersonating Martin, since he brags of besting, not holding for years, a footbag record,” and Martin didn’t claim to have achieved his title while creating origami animals.  Furthermore, there was no reason to assume that it was Martin’s record that had been beaten; other records exist, including for kicks of two footbags (as shown in the ad).  Nor did Martin plausibly allege that he had “the degree of public notoriety necessary to support a claim under the Lanham Act for false endorsement.” 

Moreover, the district court properly held that Martin failed to state a claim under the Illinois Right of Publicity Act.  That law broadly defines “identity” to mean “any attribute ... that serves to identify that individual to an ordinary, reasonable viewer or listener.”  But the phrase “the record for Hacky Sack” is too ambiguous to call an “attribute” of Martin. “[N]o reasonable viewer would interpret the commercial for 5-hour ENERGY as referring to Martin, and because he does not plausibly allege that Living Essentials invoked his ‘identity’ through the actor’s statement, Martin fails to state a claim under IRPA.”  Note the implication: if there were only one prior record holder, another person’s claim to have beaten that record—even if truthful—would seem to be an appropriation of the loser’s identity.  That seems … overbroad.