Tag Archives: Infringement of Right of Publicity

Dean Potter’s estate sues LG Electronics for unauthorized use of Moonwalk footage

02 Wednesday Oct 2019

Posted by in Intellectual Property, Litigation, Right of Publicity, Southern District of Indiana

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An interesting right of publicity case involving the estate of the late extreme-sports athlete Dean Potter has been filed in the Southern District of Indiana. Mr. Potter’s estate is suing LG Electronics for unauthorized use of Mr. Potter’s likeness and appearance. In a commercial titled Listen. Think. Answer., LG uses footage from the movie Moonwalk, in which Mr. Potter traverses a highline tied to Cathedral Peak in Yosemite National Park as the full moon rises in the background, to advertise the LG OLED TV with AI.

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LG claims to have obtained a license to use the Moonwalk footage from Moonwalk’s director, Mikey Schaefer. However, the Complaint (below) asserts that Mr. Potter had signed a release for still photographs only, not video footage. Potter’s estate also maintains that Mr. Schaefer was not able to authorize licenses or sublicenses, meaning Schaefer could exploit the Moonwalk footage himself but not authorize third-party exploitation such as the LG commercial.

“Because Mr. Potter never consented to Mr. Schaefer’s trading in the invaluable equity of Mr. Potter’s likeness in Moonwalk, and/or his reputation as a highlining pioneer, to shill television sets, Mr. Schaefer could not license to Defendants Mr. Potter’s rights, including, inter alia, Potter’s publicity and common law trademark rights.”

This should be an interesting case to follow. Stay tuned for updates. RIP Dean Potter.

“Defendant’s advertisement of a product that enables a sedentary lifestyle, wherein material demands can be met without moving from the couch in the confines of one’s living room, is antithetical to what Mr. Potter stood for in life: an appreciation of the splendor of the outdoors and a celebration of the freedom to forge one’s own path in uncharted terrain.”

Dean Potter LLC v. LG Electronics USA, Inc.

Court Case Number: 1:19-cv-04085-JPH-TAB
File Date: Tuesday, October 1, 2019
Plaintiff: Dean Potter LLC
Plaintiff Counsel: John Tehranian, Jenny S. Kim of ONE LLP
Defendant: LG Electronics USA, Inc.
Cause: Infringement of Right of Publicity, False Association, False Endorsement, Common Law Unfair Competition, Unjust Enrichment, Conversion, Deception, Violation of Indiana Crime Victims’ Act
Court: Southern District of Indiana
Judge: James Patrick Hanlon
Referred To: Tim A. Baker

Complaint:

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

28 Tuesday Dec 2010

Posted by in Indiana, Intellectual Property, Litigation, Right of Publicity, Southern District of Indiana, Trademark

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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