Right of Publicity Decisions

Right of Publicity/Statute of Limitations

The U.S. District Court for the District of Oregon decided that a right-of-publicity claim over use of the plaintiff's photo in a book was barred by Oregon's 2-year statute of limitations for such claims. Johnson v. Harper/Collins, 06-3036-AA. Pro se plaintiff Donald Johnson filed suit over publication of a photo of him on a high school baseball team that appeared in the Ricky Henderson autobiography 'Off Base: Confessions of a Thief.' The book was published in June 1994. The district court noted: 'Even if the court allows that plaintiff did not learn of the book's publication until March 5, 2004, when plaintiff wrote to defendant indicating that he was aware of the photograph at issue in the book ' plaintiff filed his claim in this case on May 30, 2006, more than 2 years after he discovered the publication of the book and the photograph at issue.'

In any case, the court added: '[P]laintiff has no 'established public familiarity [of his image],' nor has plaintiff alleged that his picture was wrongly obtained or published beyond plaintiff's claim at bar. The book is a biography of Henderson. Henderson's membership on his own high school baseball team is part of his biography. The inclusion of the photograph and appearance of plaintiff in the photograph do not convey any endorsement of Henderson or anything about Henderson. I find that plaintiff's appearance in the photograph is incidental; therefore, requiring either plaintiff's permission or payment to plaintiff for use of the team photo in the book is not required as a matter of law.'

Counsel for the defendants: Kevin H. Kono of the Portland, OR, office of Davis Wright Tremaine LLP.

Right of Publicity, Collective Bargaining Agreements/Venue Transfer

The U.S. District Court for the Northern District of California granted the motion of Mobile ESPN and its advertising agency to transfer to the Southern District of New York a suit by singers Chad & Jeremy over use of their 1960s hit recording, 'Summer Song,' in a TV and Internet ad. Stuart v. Mobile ESPN, C 06-02094 SI. The complaint alleged that use of the recording without the plaintiffs' permission violated the Screen Actors Guild collective-bargaining agreement, which requires each performer's permission for recordings made under the jurisdiction of the American Federation of Television and Radio Artists. (The defendants had obtained permission from Ember Records, the owner of the sound-recording copyright.) Chad & Jeremy also alleged that the use violated their right of publicity under California law.

Chad Stuart is a resident of Idaho and Jeremy Clyde resides in the United Kingdom. In addition, the district court noted: 'The conduct at issue ' the broadcasting of a television commercial ' occurred on a national scale. Thus, the injury occurred in every district in the country. ' [And] the primary question the Court must decide is whether 'A Summer Song' falls outside the jurisdiction of the AFTRA/SAG Commercials Contract, a question that is purely legal in nature. ' [But i]f defendants are found to have breached the contract the Court will have to determine whether their conduct was willful'. To the extent that evidence bearing on willfulness exists, it will be found in defendants' offices in New York or Boston, not in this district.'

In deciding that the case should be heard in New York, the court went on to note in part: 'While both Arnold [Worldwide, the ad agency] and Mobile ESPN do business in this district ' indeed, both admit that this Court may exercise personal jurisdiction over them ' neither have any offices in this district. Thus, defendants' contacts with this district, while not insignificant, are likely equivalent to their contacts with most other districts in this country, and are assuredly substantially less significant than their contacts with the districts in which they maintain offices.'

Counsel of record: Steven Ames Brown of San Francisco for the plaintiffs; Scott D. Baker and Adaline J. Hilgard of Reed Smith LLP in San Francisco for the defendants.

Right of Publicity/Statute of Limitations

The U.S. District Court for the District of Oregon decided that a right-of-publicity claim over use of the plaintiff's photo in a book was barred by Oregon's 2-year statute of limitations for such claims. Johnson v. Harper/Collins, 06-3036-AA. Pro se plaintiff Donald Johnson filed suit over publication of a photo of him on a high school baseball team that appeared in the Ricky Henderson autobiography 'Off Base: Confessions of a Thief.' The book was published in June 1994. The district court noted: 'Even if the court allows that plaintiff did not learn of the book's publication until March 5, 2004, when plaintiff wrote to defendant indicating that he was aware of the photograph at issue in the book ' plaintiff filed his claim in this case on May 30, 2006, more than 2 years after he discovered the publication of the book and the photograph at issue.'

In any case, the court added: '[P]laintiff has no 'established public familiarity [of his image],' nor has plaintiff alleged that his picture was wrongly obtained or published beyond plaintiff's claim at bar. The book is a biography of Henderson. Henderson's membership on his own high school baseball team is part of his biography. The inclusion of the photograph and appearance of plaintiff in the photograph do not convey any endorsement of Henderson or anything about Henderson. I find that plaintiff's appearance in the photograph is incidental; therefore, requiring either plaintiff's permission or payment to plaintiff for use of the team photo in the book is not required as a matter of law.'

Counsel for the defendants: Kevin H. Kono of the Portland, OR, office of Davis Wright Tremaine LLP.

Right of Publicity, Collective Bargaining Agreements/Venue Transfer

The U.S. District Court for the Northern District of California granted the motion of Mobile ESPN and its advertising agency to transfer to the Southern District of New York a suit by singers Chad & Jeremy over use of their 1960s hit recording, 'Summer Song,' in a TV and Internet ad. Stuart v. Mobile ESPN, C 06-02094 SI. The complaint alleged that use of the recording without the plaintiffs' permission violated the Screen Actors Guild collective-bargaining agreement, which requires each performer's permission for recordings made under the jurisdiction of the American Federation of Television and Radio Artists. (The defendants had obtained permission from Ember Records, the owner of the sound-recording copyright.) Chad & Jeremy also alleged that the use violated their right of publicity under California law.

Chad Stuart is a resident of Idaho and Jeremy Clyde resides in the United Kingdom. In addition, the district court noted: 'The conduct at issue ' the broadcasting of a television commercial ' occurred on a national scale. Thus, the injury occurred in every district in the country. ' [And] the primary question the Court must decide is whether 'A Summer Song' falls outside the jurisdiction of the AFTRA/SAG Commercials Contract, a question that is purely legal in nature. ' [But i]f defendants are found to have breached the contract the Court will have to determine whether their conduct was willful'. To the extent that evidence bearing on willfulness exists, it will be found in defendants' offices in New York or Boston, not in this district.'

In deciding that the case should be heard in New York, the court went on to note in part: 'While both Arnold [Worldwide, the ad agency] and Mobile ESPN do business in this district ' indeed, both admit that this Court may exercise personal jurisdiction over them ' neither have any offices in this district. Thus, defendants' contacts with this district, while not insignificant, are likely equivalent to their contacts with most other districts in this country, and are assuredly substantially less significant than their contacts with the districts in which they maintain offices.'

Counsel of record: Steven Ames Brown of San Francisco for the plaintiffs; Scott D. Baker and Adaline J. Hilgard of Reed Smith LLP in San Francisco for the defendants.