Indiana Right of Publicity Litigation Update – Patricia Day v. Wonderama Toys et al

Patricia Day v. Wonderama Toys et al

Plaintiff Patricia Day is the lead singer of the Danish rockabilly band HorrorPops. Plaintiff claims a distinctive on-stage appearance, which combines:

(1) black hair meticulously done in 50’s pin-up fashion; (2) her retro hairstyle juxtaposed against conspicuous and heavily-applied black eye shadow and liner and deep red lipstick; (3) her form fitting ’50s-style pencil skirts that go just past the knees; (4) her full-color “sleeve tattoos” on both upper arms; and, most importantly (5) her distinctive instrumental extension of her personality: her giant tattooed upright bass.

Mattel allegedly created a Barbie doll using the likeness of Ms. Day without obtaining a license. In addition to being an unauthorized use of her likeness, the Barbie doll has caused Ms. Day particular anguish due to her feminist leanings and the confusion caused among peers and fans.

Why was this case filed in Indiana? Presumably to take advantage of Indiana’s right of publicity law, perhaps the most extensive right of publicity statute in the world, providing recognition of the right for 100 years after death, and protecting not only the usual “name, image and likeness,” but also signature, photograph, gestures, distinctive appearances, and mannerisms. Defendants Wonderama and Rainbow End are small Indiana toy stores (in Anderson and Daleville, respectively) that sold the allegedly infringing doll. Of course, the real targets of this lawsuit are Mattel (a Delaware corporation) and Hard Rock Cafe (a Florida corporation).

Did Mattel usurp Ms. Day’s likeness for the doll? You be the judge:

This should be an interesting case to follow step-by-step. Plaintiff has retained a few high-profile entertainment attorneys and we can expect Mattel and Hard Rock will do the same. I’ll keep you updated with each new filing. In the meantime, more images of Ms. Day for comparison sake:

Court Case Number: 1:10-cv-01689-RLY-MJD
File Date: Thursday, December 23, 2010
Plaintiff: Patricia Day
Plaintiff Counsel: John Tehranian and Peter Afrasiabi of ONE LLP
Defendants: Wonderama Toys, Rainbow’s End Collectibles, Mattel Corp., Hard Rock Cafe International (USA), Inc.
Cause: Infringement of Right of Publicity (Indiana Code 32-36), False Association and False Endorsement
Court: Southern District of Indiana
Judge: Judge Richard L. Young
Referred To: Magistrate Judge Mark J. Dinsmore

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