Illinois right of publicity allows truthful statements about performers in ads

Martin v. Wendy’s International, Inc., No. 15 C 6998 (N.D. Ill. Apr. 28, 2017)

Discussion of the initial dismissal here.  The revised complaint fares no better.

Martin holds the world record for consecutive kicks of a footbag, which was mentioned in a Wendy’s and Guinness promotion in which every Kid’s Meal sold at Wendy’s restaurants included a Guinness-themed toy; one of the toys was a footbag.  A card included with the footbag showed a picture of two people playing footbag (not Martin).  The card read in part: “How many times in a row can you kick this footbag without it hitting the ground? Back in 1997, Ted Martin made his world record of 63,326 kicks in a little less than nine hours!”  Martin sued for violation of the the Illinois Right of Publicity Act and Section 43(a) of the Lanham Act.

The court first held that the statute of limitations for IRPA was one year, and thus the claim was time-barred; IRPA was designed to supplant rather than alter the common law of publicity, which had a one-year statute of limitations, and thus it was inappropriate to use the five-year statute of limitations applicable to claims for “an injury done to property” and “all civil actions not otherwise provided for.”

But anyway, the IRPA claim failed.  An IRPA violation required a “commercial purpose,” which was present, because defendants used Martin’s name in their “promotion,” falling within the statute’s definition of “[c]ommercial purpose” as “the public use or holding out of an individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising.” However, IRPA excepts, among other things, “use of an individual’s name in truthfully identifying the person as the author of a particular work or program or the performer in a particular performance.”  “[I]t would be nonsensical to hold that the law prohibits Guinness from reciting that bare fact in a promotional item but permits it to include the fact in the books it sells.”

Nor did Martin state a plausible Lanham Act claim. He added the allegation that business associates in Montreal, Canada, told him, “We thought you had something to do with it,” i.e., they believed that plaintiff was directly involved in defendants’ footbag promotion.  But the Lanham Act inquiry “must focus on confusion by the customer.” Even with this anecdote, Martin didn’t plausibly allege that ordinary consumers were likely to believe that Martin endorsed the footbags based only on defendants’ mention of his record on the instructional card.  In the context of the promotion, it was clear that “mentioning plaintiff’s record on the instructional card served only to offer a sample of the sort of world records Guinness publishes—and plaintiff does not claim that Guinness does not have the right to publish the record in its books.”

Martin argued that the case should be governed by Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996), but that case involved a TV ad, not an instruction card included with a free promotional toy; the latter “is not a context in which consumers are accustomed to seeing celebrity endorsements.” More importantly, defendants did not use Martin’s record to “make a claim for” its footbags, as the analogy between Lew Alcindor and GM’s car did in the Abdul-Jabbar ad. Mentioning the record served at most as “an illustrative example” of what to do with a footbag; “it had nothing to do with the qualities of the footbag.”

The court declined to reach defendants’ First Amendment defense, which was a good thing for them because the court didn’t see a meaningful difference between this case and Jewel v. Jordan, finding “image advertising” to be commercial speech.  Defendants invoked the Rogers test, but it wasn’t clear that the promotion Martin challenged should be characterized as an “expressive work.” [Aaaaargh.  Ads are expressive works.  Whatever the right name is for the things Rogers covers, it’s not that.]