As proof that the Right of Publicity is an inexhaustible source of seemingly unlikely scenarios, Time Magazine has recently reported on a gourmet “Mandela Burger” offered by a cafe in Copenhagen, named after Nelson Mandela.
Significantly, what is not articulated in the Time coverage is that the Cafe itself is named Cafe Mandela. As a result, the issue of whether such use infringes upon Nelson Mandela’s rights could encompass the entire establishment, and not just the $24 burger on the menu. If a “Mandela Burger” is an actionable violation, so too is “Cafe Mandela.”
This situation could raise potential issues concerning the recognition of publicity rights or their equivalent by various nations. For example, Mandela and his Foundation are based in South Africa, and the cafe is based in Denmark. Mandela, at 91, is still very much alive, so there is not an issue as to whether the Right of Publicity would be recognized in a post-mortem capacity. Following UK law, South Africa is not likely to interpret publicity-style rights favorably after the individual is deceased since the UK does not recognize post-mortem publicity rights. Other factors, such as trademark, could provide an alternative basis under the right circumstances.
As a practical matter, this might be one of those issues that is ignored by Mandela’s advisors, although the Time report indicates that Mandela’s advisors increasingly are taking action against unauthorized use of his name.
For example, Republic of the Congo President Denis Sassou Nguesso included in his autobiography, Straight Speaking for Africa, an excerpt of a speech Mandela gave. The alleged Mandela quote praises Nguesso as “not only one of our great African leaders…but also one of those who gave their unconditional support to our fighters’ demand for freedom, and who worked tirelessly to free oppressed peoples from their chains and help restore their dignity and hope.”
Mandela’s Foundation denies that Mandela has even read Nguesso’s book, much less endorsed it. “We condemn this brazen abuse of Mr. Mandela’s name” said the Foundation in a statement.
Whether or not there is a viable cause of action based on Nelson Mandela’s Right of Publicity interests, I’d say $24 for Mandela burger should be illegal in any jurisdiction.
Here’s a link to the Time story: http://www.time.com/time/world/article/0,8599,1933177,00.html?xid=newsletter-daily