Here’s a Right of Publicity fact pattern to kick around: can a company make Pope Francis dolls without a license from the Pope?
I don’t know if the recently announced Pope Francis dolls from Bleacher Creatures are licensed or not, so I want to be clear on that point and allow for the possibility that they are. Bleacher Creatures primarily makes 10″ dolls of famous athletes, and they wouldn’t be doing that without permission.
In the link below, I find it interesting that the company is said to be “crossing their T’s and dotting their I’s” but the extent of that due diligence appears to be simply that they “reached out to the Vatican” and “would love to officially partner with them.” Taken at face value, that strongly indicates that they do not have any form of permission to make the dolls.
Of course, “reaching out” coupled with a statement of desire to “officially partner” is not all that is needed to proceed with commercial products of a famous person. Perhaps the play here is that the Pope isn’t likely to file a claim over it, but last time I checked, “likelihood of getting away with it” was not the legal standard for Right of Publicity infringement.
John Devenanzio, known as “Johnny Bananas” from MTV’s Real World Key West and other MTV reality shows, has filed a lawsuit in response to the Johnny Bananas character in HBO’s Entourage. The lawsuit was filed in New York and names HBO, Time Warner, and the creator of Entourage as Defendants. In addition to monetary damages, the lawsuit seeks to stop distribution of Entourage episodes which include the Johnny Bananas character played by Kevin Dillon.
Devenanzio’s lawyer also represented Lindsay Lohan in Lohan’s lawsuit against E-Trade for its depiction of the milk-aholic baby referred to simply as “Lindsay.” That claim has reportedly settled. Here’s a link to my entry on that claim: http://rightofpublicity.com/lindsay-lohan-and-the-etrade-milkaholic-baby
The Hollywood Reporter write up on Devenanzio’s claim is well-written and thorough, though it does seem to reveal a certain disdain for Devenanzio’s claim. The claim is characterized as “remarkably vague,” and states that “it appears Devenanzio is not asserting any allegation of trademark infringement” but instead is claiming violation of “his publicity and privacy rights.” I’m not sure why that in itself is inherently vague.
I haven’t reviewed Devenanzio’s filings, or those of the Lindsay Lohan claim against E-Trade; however, alleging a trademark violation, or having Federally registered trademarks protecting a person’s namesake or some distinctive aspect of his or her identity, is not a prerequisite to filing a lawsuit when the claimant’s Right of Publicity has been commercially utilized. This point is a hallmark of Right of Publicity analysis. The Right of Publicity may share certain characteristics with trademark law, but they are not interchangeable. Each protects different interests, have their own elements and standards, and have distinct policy rationales.
The write up further states that success in the lawsuit “may depend on whether he can find anything in discovery that shows [Defendants] had Devenanzio in mind when they created the Johnny Bananas character.” This is not the standard Devenansio has to meet, though. For one thing, it may be impossible to find a “smoking gun” that demonstrates a clear link, or an intentional act, of naming the Entourage character after Devenanzio. If such evidence can be found, so much the better for Devenanzio’s claim and prospects for punitive damages.
But a successful Right of Publicity does not require proof of intent to infringe. What matters most is whether the claimant is identifiable from the portrayal. Identifiability will be measured by viewers of the show and their determination or impressions, not those of the show’s creators or producers.
It seems to me that Johnny Bananas is a fairly distinctive nickname. One does not have to be identifiable on the level of a Michael Jordan, or George Clooney, or President Obama, either. Instead, a viewer, or a potential jury as it were, can be presented information, context and imagery of Devenanzio’s Johnny Bananas and that of the Johnny Bananas in Entourage. This may take the form of “aided identification” (as opposed to “unaided identification”), but this does not invalidate a potential Right of Publicity claim. There might just be something to Devenanzio’s claim.
Here is a link to the Hollywood Reporter article: http://www.hollywoodreporter.com/thr-esq/mtv-star-sues-hbo-johnny-244446