Jackson v. Franklin Sports Gazette, Inc. Grading ... - Oregon State Bar

MPT-1 

709 

Jackson v. Franklin Sports 

Gazette, Inc. 

Grading Materials 

Copyright © 2009 by the National Conference of Bar Examiners. 

All rights reserved.

The MPT point sheet, grading summary, and grading guidelines describe the factual and legal points 

encompassed within the lawyering task to be completed. They outline all the possible issues and points 

that might be addressed by an applicant. They are provided to the user jurisdictions for the sole purpose of 

assisting graders in grading the examination by identifying the issues and suggesting the resolution of the 

problem contemplated by the drafters. These are not official grading guides. Applicants can receive a 

range of passing grades, including excellent grades, without covering all the points discussed in these 

guides. The model answer is included as an illustration of a thorough and detailed response to the task, 

one that addresses all the legal and factual issues the drafters intended to raise in the problem. It is 

intended to serve only as an example. Applicants need not present their responses in the same way to 

receive good grades. User jurisdictions are free to modify these grading materials, including the suggested 

weights assigned to particular points. Grading the MPT is the exclusive responsibility of the jurisdiction 

using the MPT as part of its admissions process.

Point Sheet

Jackson v. Franklin Sports Gazette, Inc. 

DRAFTERS’ POINT SHEET 

In this performance test item, applicants’ law firm represents the Franklin Sports Gazette, 

a weekly tabloid sports newspaper. The Gazette has been sued by Richard “Action” Jackson, star 

third baseman of the Franklin Blue Sox, Franklin City’s major league baseball team, for violation 

of his right of publicity under the recently enacted Franklin right of publicity statute. 

The Gazette had, five years earlier, run a photograph of Jackson sliding into home plate 

(“the Photo”) as part of its coverage of a Blue Sox game. In the Photo, Jackson’s back was to the 

camera, his face and most of his body were obscured, and only the last digit of his uniform 

number was visible. 

On June 15, 2009, the Gazette’s vice president of marketing sent a memo to its managing 

editor suggesting that the Gazette run a new advertisement in the Franklin City Journal, a daily 

newspaper, soliciting subscriptions. The advertisement showed the Photo over the headline 

“GET IN WITH THE ACTION!” and text that referred to the Gazette’s coverage as including 

“award-winning photos like this that put you right in the middle of the action!!!” After the 

advertisement ran in the paper as drafted, Jackson sued the Gazette. 

The Gazette seeks the law firm’s assistance in defending against the suit. Applicants’ task 

is to draft an objective memorandum analyzing whether there is a cause of action under 

Franklin’s right of publicity statute, identifying the Gazette’s possible legal arguments to oppose 

such a cause of action, and assessing the likelihood of success. 

The File contains 1) the instructional memorandum, 2) a memorandum from the partner 

summarizing background research and interviews with the Gazette’s managing editor and vice 

president of marketing, 3) the memorandum from the vice president of marketing to the 

managing editor suggesting the advertisement, and 4) the advertisement itself. The Library 

contains 1) the Franklin right of publicity statute, 2) excerpts from its legislative history, and 3) 

three cases bearing on the subject. 

The following discussion covers all the points the drafters intended to raise in the 

problem. Applicants need not cover them all to receive passing or even excellent grades. Grading 

is entirely within the discretion of the user jurisdictions. 

1

I. FORMAT AND OVERVIEW 

The assignment is to prepare a memorandum analyzing whether there is a cause of action 

under the recently enacted Franklin right of publicity statute. The analysis should be objective, 

noting the arguments on both sides of the issues presented and assessing the likelihood of 

success on each issue. 

Jackson v. Franklin Sports Gazette, Inc., then poses two specific questions and one 

overarching legal issue for applicants: 

1) Was Jackson identifiable in the Photo? If not, there is no possibility he could 

prove facts supporting one of the necessary conditions for a cause of action for 

violation of his right of publicity—the requirement that the individual’s persona 

be used. 

2) Even if he was identifiable in the Photo, is the use of the Photo by the Gazette 

excused under the statute’s exemption for news reporting? 

3) The answers to these questions must be informed by the degree to which the prior 

common law decisions are relevant and precedential under Franklin’s new right of 

publicity statute. 

No introduction or formal statement of facts is necessary, but applicants should 

incorporate the relevant facts into their analyses, using descriptive headings to separate the 

issues; those headings presented below are illustrative examples only, and not prescribed 

headings that applicants must use. 

Applicants would likely review the elements of a cause of action under the right of 

publicity statute: 1) use of the plaintiff’s persona, 2) appropriation of the persona for commercial 

or other advantage, 3) lack of consent, and 4) resulting injury. With respect to the second 

element, there is no doubt that the Gazette used the Photo for its commercial advantage. 

Likewise, elements 3 and 4 are not in dispute. The key issue is whether the first element has 

been met. 

It is expected that applicants will conclude that there is a good, although not absolutely 

certain, argument that Jackson is not identifiable in the Photo. Thus, it is not possible to prove 

facts which meet the statutory requirement of identifiability necessary for a cause of action. On 

this issue, there is a strong argument that the existing common law precedents supporting the 

2

Gazette’s position remain good law, notwithstanding the preemption provision of the statute, as 

the decisions comport with the statute and its legislative history. In addition, there is a weaker, 

but plausible, argument that the use of the Photo comes within the news reporting exception of 

the statute. On this issue, the argument that the common law precedents remain good law, while 

plausible, is weak, given the language of the statute and legislative history. 

II. DISCUSSION 

A. Was Jackson identifiable? 

The statute requires that the individual depicted in a photograph be “readily identifiable.” 

§ 62(b). It defines that term as meaning that a viewer can “reasonably determine that the person 

depicted in the photograph is the same person who is complaining of its unauthorized use.” 

§ 62(b)(1). Applicants should note that the common law right of publicity required that the 

plaintiff’s persona be appropriated and argue that this is a standard similar to the standard in the 

statute. The legislative history of the statute indicates that prior common law decisions that 

accord with the new statutory provisions remain good precedent. This would indicate that the 

prior common law decisions on identifiability—Holt v. JuicyCo, Inc., and Janig, Inc., and Brant 

v. Franklin Diamond Exchange—are still good law, as each appears to apply the equivalent of 

the new statutory standard, albeit not in so many words. 

What features or attributes make an individual “identifiable”? 

Jackson’s face and most of his body are not visible in the Photo. Applicants should note 

that Holt teaches that facial representation is not necessary—there, the distinctive and unique 

garb of the athlete was sufficient to identify him in the minds of the public. On the other hand, 

Brant teaches that such “secondary” identification can only go so far—when an individual is 

depicted without any distinctive identifying features whatsoever, the right of publicity is not 

violated, for the public cannot identify the individual depicted as the individual making the 

claim. Accordingly, applicants must analyze whether Jackson is “identifiable” from any nonfacial 

features in the Photo, such that a viewer could, in the words of the statute, “reasonably 

determine” that it is Jackson being depicted in the Photo. 

Is Jackson “identifiable” from any non-facial features in the Photo? 

Applicants should address the question whether there is any aspect of Jackson’s depiction 

in the Photo that would allow the public to know that it is he, and not another player, being 

depicted. Applicants should state that a successful motion to dismiss requires that Jackson is not 

3

identifiable from the Photo. Applicants should apply the following analysis in concluding that 

Jackson’s claim is unlikely to succeed: 

No part of Jackson’s face or body can be identified. 

One possible identification that could be made is based on Jackson’s uniform. But the 

uniform design has not changed in 25 years, and, by definition, a “uniform” is uniform— 

it is the same for all players on the team. Thus, the Photo could depict any player on the 

team. Applicants should support this analysis by referring to and analogizing with the use 

of a common swimsuit design by all competitors in Brant. 

Applicants should distinguish Holt by noting that the plaintiff there was “identifiable” by 

the unique aspects of his clothing (his gold racing suit), and argue that no similarly 

unique attributes are present here. 

Another possible identification that could be made is based on the partial visibility of 

Jackson’s uniform number—the last zero in his double-zero number. But, at the time the 

Photo was taken, three other Blue Sox players had numbers ending in zero, and, at the 

time of the lawsuit, five other players did. Hence, the picture could have been of any one 

of four to six different individuals. 

The uniform number analysis requires further refinement—as parts of Jackson’s 

unclothed body (one arm, his neck) are visible in the Photo, were those teammates whose 

numbers ended in zero of the same ethnic background as Jackson? As Jackson is 

Caucasian, if all the other teammates whose numbers ended in zero were non-Caucasian, 

that might be enough to find Jackson identifiable in the Photo. But the facts tell us that a 

sufficient number were also Caucasian (two of the three when the Photo was taken, and 

all five at the time of the lawsuit) as to preclude the possibility that Jackson could be 

reasonably identifiable in the Photo. 

Is Jackson “identifiable” from the text of the advertisement? 

Applicants may note that Jackson may argue that the text of the advertisement, by its 

repeated use of the word “action,” identifies the individual in the Photo as Jackson by 

using his nickname. This, it could be argued, is a secondary identifying feature like the 

distinctive outfit worn by the plaintiff in Holt. In response, applicants might observe that 

the statute’s definition of what makes a person identifiable in a photograph is based 

4

solely on visual elements in the photograph itself. Hence, the use of “action” in the text 

does not affect the identifiability of the individual depicted in the Photo. 

Applicants might also note that Jackson could argue that the repeated use of the word 

“action” in the text of the advertisement and the reference to him in the memorandum 

from Sandi Allen to Jerry Webster show an intent to identify Jackson as the individual in 

the photograph, and therefore violate his right of publicity. The counterargument would 

be that use of “action” in the ad and the memo (with one exception, discussed below) was 

as a common noun, not the proper noun of Jackson’s nickname: 1) if the headline in the 

ad had referred to Jackson, it would have said, “GET IN WITH ACTION,” not “GET IN 

WITH THE ACTION” (emphasis added); 2) the memo referred to the Photo conveying 

“excitement, action, and the kind of sports coverage we stand for” (emphasis added), 

using the common noun “action” (with no initial capital letter) rather than the proper 

noun (with an initial capital letter); and 3) the text of the ad, referring to “put[ting] you 

right in the middle of the action” (emphasis added), also used the common noun, not 

Jackson’s nickname. Hence, applicants could conclude that the public would understand 

the use in the ad in the sense of the common noun “action,” and not as identifying 

Jackson himself. 

Finally, perceptive applicants will note that the memo’s identification of the individual in 

the Photo as Action Jackson simply indicates the Gazette’s knowledge that the Photo 

depicts Jackson and not another player, and does not go to the question of the 

identifiability by the public of Jackson in the ad. Although the statute imposes liability on 

one who “knowingly uses” an individual’s persona, a second requirement is that the 

individual be identifiable. As the court stated in Brant, that knowledge, and even its 

admission, does not make the individual “identifiable” by the public in the use itself. 

In sum, applicants should conclude that there is a good argument, albeit not a certainty, 

that, under the statute and relevant and still-valid precedent, Jackson is not identifiable in the 

Photo and, as a result, he does not have a cause of action for violation of his right of publicity. 

B. Was the use for news reporting? 

Applicants should proceed in their analysis to note that, even if Jackson were 

“identifiable” in the Photo, the use could still be exempt because of the affirmative defense for 

5

“news reporting” in the statute, § 62(d). As there seems to be prior common law precedent which 

would exempt the Gazette’s use in the subscription solicitation, applicants should first address 

whether the statute has changed the common law standard; if it has, the prior supporting case law 

no longer serves as precedent. 

Did the statute change the common law standard of what constitutes news 

reporting? 

Both the common law right and the new statutory right contain an exception for news 

reporting. See § 62(d); Miller v. FSM Enterprises, Inc. (Fr. Ct. App. 1988). As the common law 

developed, to be exempt the use had to be somehow related to news dissemination: 

 

In Jancovic v. Franklin City Journal, Inc. (discussed in Miller), a news photograph that 

was reproduced as a poster and sold as such by the newspaper, but without any 

reference to its news function, was held to violate the individual’s common law right of 

publicity. The court held that it made no difference that the poster came from a news 

organization, as the lack of reference to the organization or its news activities removed 

the use from the exemption. 

 

Applicants should distinguish Jancovic on the grounds that the Gazette’s use did indeed 

refer to its news reporting activities. The text of the advertisement made direct reference 

to the activities and type of news coverage the Gazette provides (“great stories,” 

“coverage of every Franklin team,” “award-winning photos”). 

 

Applicants will also note that a common law precedent, Miller, supports exemption for 

exactly the sort of use made here by the Gazette. In Miller, a magazine used a news 

photograph for a subscription solicitation, much like the use here. The court held (over 

dissent) that the relation of the photograph to the news function of the magazine was 

sufficient to qualify for the exemption, as the use was an example of the magazine’s 

news coverage. 

 

Is Miller still good law under the statute? The statute grants an affirmative defense for 

use “in connection with any news, public affairs, or sports broadcast or account” 

6

(emphasis added). While this obviously applies to stories and news accounts, it is 

unclear as to whether it would extend to solicitations for subscriptions as was the case in 

Miller—could the solicitation, which illustrates the type of “news or sports accounts” 

the publication covers, itself be described as a “news . . . or sports . . . account”? 

Arguing against applying the Miller common law precedent is the plain language of the 

statute, which refers only to “account[s]” (in contrast, in Miller, the court was not 

construing statutory language but analyzing the issue in the context of whether the use 

of the plaintiff’s image fell within the term “news reporting” under the common law). 

The legislative history could also be seen as, at best, ambiguous: 1) it notes that there 

was “uncertainty” as to whether uses “ancillary” to news reporting incurred liability, 

and 2) it emphasizes the “broadcast or account” language of the new statute. Hence, 

applicants should note the potential argument that the subscription solicitation furthers 

the goal of supporting news reporting by making the public aware of the Gazette’s 

coverage of issues of public interest, and thus the Miller rationale should be followed as 

good precedent, while also noting the weakness of the argument. 

 

The case for a valid affirmative defense could be seen as a toss-up at best. The statute 

speaks of the use of a photograph “in connection with any . . . sports broadcast or 

account.” Is this language sufficiently broad to cover the advertisement? Is the term so 

ambiguous as to make resort to the legislative history necessary? Perceptive applicants 

will state that, while one could argue that the use of the Photo in the solicitation as an 

example of the Gazette’s content was intended to make the public aware of the 

Gazette’s coverage, one might just as easily argue that the statutory language is clear 

and includes only “account[s]” and not advertisements for the news medium itself. 

If the statute adopted the common law standard for affirmative defense as set forth 

in Miller, did the Gazette’s specific use of the Photo meet that standard? 

 

Applicants should also note that the Miller precedent itself is not clear-cut and does not 

necessarily favor the Gazette. The Miller court opined that, if the use could be seen as 

an implied endorsement of the commercial purpose of the magazine, then the relation of 

the subscription solicitation to the news aspects would disappear and the use would 

7

violate the individual’s right of publicity. The court gave as an example of such an 

impermissible implied endorsement the use of the individual’s name in the text of the 

solicitation. 

 

The Gazette’s advertisement did use Jackson’s nickname (“Action”) in both its headline 

and text, but, it could be argued, not as referring to the individual but rather to the 

common usage of the word “action,” as previously noted. Hence, it could be argued, the 

use of the word would not be seen as an endorsement by Jackson. Again, applicants 

should note that the facts are ambiguous and this point could go against the Gazette. 

 

Perceptive applicants might conclude that the question could ultimately be whether it is 

the Gazette’s intent or the public’s perception that determines the answer to whether an 

endorsement was implied. 

Applicants should conclude that, while there is an argument to be made that Jackson’s 

claim is not viable because the subscription solicitation falls within the statute’s affirmative 

defense for “news reporting,” that result is not certain, and good arguments could be made the 

other way that could defeat reliance on the “news reporting” affirmative defense. 

8

Grading Summary 

and 

Grading Guidelines

Multistate Performance Test 

GRADING SUMMARY 


The Franklin Sports Gazette has been sued by baseball star Richard “Action” Jackson for allegedly 

violating his right of publicity. Applicants must draft a memo analyzing whether Jackson has a cause of 

action (COA) under Franklin’s right of publicity statute and whether the Gazette has any arguments to 

oppose that COA. Applicants should conclude that Jackson is not identifiable in the Photo, and that the 

Gazette’s use of the Photo could fall within the statute’s news reporting exemption. 

Whether Jackson Has a COA under Franklin’s New Right of Publicity Statute (60% total weight) 

A COA under the statute requires 1) use of the plaintiff’s persona, 2) appropriation of the persona for 

commercial or other advantage, 3) lack of consent, and 4) resulting injury. 

The key issue is use of Jackson’s persona. Presumably, commercial advantage, lack of consent, 

and injury will be easily established. 

Cases on the common law COA for appropriation of persona remain good law. (10% weight) 

The individual’s face need not be visible; distinctive clothing or other features may be 

enough for identification. Holt; Brant. 

Under § 62(b), Jackson is not “readily identifiable” in the Photo by the public. (30% weight) 

No part of his face or body can be identified. 

His clothing does not identify him—the second “0” on his uniform is visible, but four players 

had numbers ending in “0” that season, and six players now wear such numbers. 

Jackson is Caucasian, as are the other five players who wear numbers ending in “0”; when 

the Photo was taken, two other Caucasian players had numbers ending in “0.” 

The word “action,” Jackson’s nickname, in the ad is not sufficient to identify him. (20% weight) 

It is arguable that identifiability must be established by the Photo alone, without the ad’s text. 

This construction would favor the Gazette. 

The better argument is that here, “action” is a common noun, not a proper noun (e.g., “Get in 

with Action”), and thus there is no connection with Action Jackson. 

In sum, it is likely that Jackson is not identifiable and his complaint thus fails to state a COA. 

Whether the Gazette’s use of the Photo constitutes news reporting under § 62(d) (40% total weight) 

Miller, which predates § 62, permitted use of a news photo in a subscription ad as an ancillary 

use illustrating the magazine’s news coverage. 

The Gazette’s use of the Photo would likely be a permitted use under Miller. 

But Jackson could make a plausible argument that the use of his likeness and the word 

“action” could be deemed an endorsement by Jackson of the Gazette—not a permitted use. 

This is a closer case than Miller, where the plaintiff’s name was not cited in the ad. 

The language of § 62(d) creates uncertainty regarding ancillary uses. Is Miller still good law? 

§ 62(d) refers only to a news “account,” thus, a court could conclude that it is not as broad as 

the common law “news reporting” defense. 

However, § 62(d)’s reference to a use “in connection with any news … account” may lend 

support for uses which advertise the news medium itself. 

Applicants may come down either way on this issue—the point is that they recognize and 

grapple with the ambiguity in the statutory language. 20% weight should be allocated to the issue 

of whether Miller remains good law and the other 20% to the application of the law to the facts. 

11 

Not for Public Distribution



Grading Guidelines 

I. Overview Grading Comments 

Applicants’ law firm represents the Franklin Sports This section is informative only 

Gazette, a tabloid newspaper that has been sued by Richard and no grading weight is 

“Action” Jackson, a star baseball player, for violation of assigned. 

his right of publicity after the Gazette used a photo of 

Jackson sliding into home plate (the “Photo”) in an 

advertisement soliciting subscriptions to the Gazette. 

 

 

 

 

 

Years ago, the Gazette had run the Photo as part of its 

coverage of a Blue Sox baseball game. In the Photo, 

Jackson’s back is to the camera, his face and most of his 

body are obscured, and only the last digit of his uniform 

number, 00, is visible. 

In June 2009, the Gazette approved a new advertisement to 

solicit subscriptions. The advertisement showed the Photo 

over the headline “GET IN WITH THE ACTION!” and 

text that referred to the Gazette’s coverage as including 

“award-winning photos like this that put you right in the 

middle of the action!!!” 

After the advertisement ran, Jackson, who earns millions of 

dollars from licensing his name and image, sued the 

Gazette, claiming that the advertisement infringed on his 

right of publicity and that he was damaged by the loss of 

the license fee he would have gained from the use of his 

image and the loss of his ability to license the use of his 

image to other sports publications. 

Applicants’ task is to analyze the merits of Jackson’s cause 

of action in light of Franklin’s recently enacted right of 

publicity statute, § 62, and the relevant cases, all of which 

predate the statute. 

Applicants should conclude the Gazette can pose strong 

arguments against Jackson’s COA. The merits of the 

affirmative defense for “news reporting” are less certain. 

No discrete weight is assigned to 

the “format” component of the 

task, nor are applicants given a 

specific template to follow in 

drafting their memos. No 

separate statement of facts is 

required. Applicants should incorporate 

the facts in their 

analyses and organize their 

discussions into sections with 

descriptive headings. 

Whether or not to weight format 

is left to the discretion of the user 

jurisdictions. 

The assignment is to write an 

objective memorandum. Work 

product that is persuasive in tone 

is not responsive to the 

instructions in the call memo. 

II. Whether Jackson is readily identifiable in the Photo 

The elements of a violation of the right of publicity are 1) 

use of the plaintiff’s persona, 2) to the defendant’s 

commercial or other advantage, 3) without the plaintiff’s 

consent, and 4) thereby causing injury to the plaintiff. Fr. 

Code § 62; Miller v. FSM Enter., Inc. (Fr. Ct. App. 1988). 

12 

(60% suggested total weight) 

The elements of a § 62 claim are 

the same as for the common law 

right of publicity cause of action. 




 

 

These elements appear to be undisputed: Jackson will be 

able to show that the Gazette knowingly used the Photo, 

for a commercial purpose (the ad), and that he did not 

consent to its use, nor did he receive any fee. 

Better answers will note that Holt and Brant predate the 

enactment of § 62, but that those cases are still good law 

because the definition of identifiability used is in accord 

with the statutory standard. See Leg. History. 


There is no question that Jackson 

did not consent to the use of his 

persona, and that he will be able 

to show injury—he earns 

millions from licensing his name 

and likeness. 

(10% suggested weight) 

 

Thus, the dispositive issue is whether the Gazette made use 

of Jackson’s persona. Doing so requires that Jackson be 

“readily identifiable” in the Photo. See § 62. That is, could 

the public “reasonably determine” that the Photo depicts 

Jackson, and not another Blue Sox player? Id. 


 

The award-winning Photo shows Jackson, in his team 

uniform, sliding into home plate. His back is to the 

camera and his face is not visible in the Photo. Only the 

second “0” of Jackson’s team number, “00”, is visible. 

 

 

Neither the statute nor Franklin case law requires that to be 

“readily identifiable,” an individual’s face must be visible. 

In Holt v. JuicyCo, Inc., and Janig, Inc., the athlete was 

identifiable by virtue of his unique and distinctive racing 

suit; thus the advertising company violated Holt’s right of 

publicity even though it had digitally removed his race 

number from the video. 

 

Holt is distinguishable: Jackson is wearing the team 

uniform, and, while his number would usually identify 

him, only the last “0” is visible. 

 

 

 

Other players, both when the Photo was taken five years 

ago and now, have worn numbers ending in “0,” and at 

both times, there were Caucasian players other than 

Jackson wearing team numbers ending in “0.” 

Thus, applicants should conclude that, as in Brant, where 

only the plaintiff’s legs and a portion of her swimsuit were 

visible, Jackson is not “readily identifiable.” 

The fact that the Gazette knew the Photo was of Jackson 

does not speak to the issue of whether Jackson is 

identifiable. 

13 





 

The ad’s text (“GET IN WITH THE ACTION”, etc.) lends 

support to Jackson’s claim, but probably is not enough to 

demonstrate that he is readily identifiable. 


 

 

The Gazette could argue that identifiability must be 

established by the photo itself, without reference to any 

accompanying text—after all, § 62(b) makes no 

mention of any text presented with the photograph. 

In the ad, “action” is used as a common noun. If the 

text were “Get in with Action” (proper noun), Jackson 

would have a much stronger case. 

 

Because it appears that Jackson is not readily identifiable 

in the Photo, he cannot maintain a cause of action for 

violation of his right of publicity. 

III. Whether the Gazette’s use of the Photo falls within the right 

of publicity statute’s exemption for news reporting 

(40% suggested total weight)* 

 

 

 

Use of an individual’s photograph for “news reporting” is 

an affirmative defense to a claim for violation of the right 

of publicity. § 62(d). 

But has the statute changed the common law standard for 

what is “news reporting” in the context of right of publicity 

actions? 

The common law: Miller v. FSM Enter., Inc. (Fr. Ct. App. 

1988) discussed the common law exemption to the right of 

publicity for news reporting, holding that the use of the 

plaintiff’s image “informed the public as to the nature and 

quality of [the magazine’s] news reporting.” Although the 

photo was used to solicit subscriptions, the court held that 

the exemption for news reporting extended to “incidental 

advertising of the news medium itself.” 

 

The Gazette’s advertisement explicitly references its 

news coverage of sporting events (“Great stories! 

Coverage of every Franklin team!!”). 

However an applicant resolves 

the “readily identifiable” issue, 

he or she should go on to discuss 

the application of the news 

reporting affirmative defense. 

Applicants should recognize that 

the statutory language varies 

from the common law’s “news 

reporting” exception. 

*Roughly 20% weight is 

suggested for that portion of 

applicants’ answers that grapple 

with whether Miller is still good 

law. The remaining 20% credit is 

allocated for their application of 

the law to the facts. 

 

Thus, as in Miller, the use here can be distinguished 

from that in Jancovic, where the infringing use of the 

plaintiff’s image in a poster had no connection to news 

reporting, even though it was a newspaper that created 

the poster and profited from its sale. 

14 





 

 

Miller limited the news reporting exemption to cases 

where “there can be no inference of endorsement by the 

individual depicted.” In dictum, the court speculated 

that if the ad had featured the plaintiff’s name, that 

might constitute an implied endorsement and the 

exemption would not apply. 

Citing Miller, Jackson could claim that the Gazette’s 

use of the Photo, coupled with the repeated use of the 

word “action” in the ad, constituted an “implied 

endorsement” by Jackson and was meant to exploit his 

popularity as “Action Jackson.” 

 

 

 

 

The statute: Citing § 62, Jackson could successfully argue 

that by using the phrase “sports broadcast or account” the 

legislature limited the affirmative defense to “accounts” 

and that it does not cover ancillary uses such as 

advertisements. 

On the other hand, the legislative history for § 62 suggests 

it is an open question whether the affirmative defense for 

the use of a photograph “in connection with any news . . . 

or sports broadcast or account” encompasses ancillary 

uses, such as the Gazette’s use of the Photo. 

If Miller remains good law, the Gazette’s use of the Photo 

likely comes within the news reporting affirmative defense 

and does not infringe Jackson’s right of publicity. 

In sum, the issue can be argued either way, although it 

appears somewhat more likely that a court would be 

inclined to follow Miller and conclude that the right of 

publicity is not infringed by ancillary use in advertising the 

news medium itself. 

This is a subtle issue, and could 

go either way. Thus applicants 

should receive full credit for 

identifying and thoroughly 

analyzing this issue, regardless of 

their ultimate conclusions. 

15 


Model Answer



Model Answer 

MEMORANDUM 

TO: Robert Benson 

FROM: Applicant 

RE: Jackson v. Franklin Sports Gazette, Inc. 

DATE: July 28, 2009 

You have asked me to analyze whether Richard “Action” Jackson has a cause of action 

under Franklin’s right of publicity statute and the legal arguments for opposing such a cause of 

action. As discussed below, it is likely that Jackson cannot maintain a cause of action. 

Whether Jackson Has a Cause of Action Under the Right of Publicity Statute 

Jackson’s claim arises from the Gazette’s use of a photo of him sliding into home plate 

(“the Photo”). Franklin’s newly enacted right of publicity statute, § 62(a), provides: “Any person 

who knowingly uses another’s … photograph, or likeness, in any manner … for purposes of 

advertising or selling, or soliciting purchases of products, … without such person’s prior consent, 

… shall be liable for any damages sustained by the person … injured as a result thereof.” A 

cause of action under the statute (which codifies the common law standard for violation of the 

right of publicity) has four elements: (1) the defendant’s knowing use of the plaintiff’s persona, 

(2) appropriation of the plaintiff’s persona to the defendant’s commercial or other advantage, (3) 

lack of consent, and (4) resulting injury. Miller v. FSM Enter., Inc. (Fr. Ct. App. 1988). 

As to the first element, the Gazette knowingly used a photo of Jackson in its 

advertisement. In her memorandum, Sandi Allen, the Gazette’s vice president of marketing, 

notes that the Photo is of “Action” Jackson and that it “conveys excitement, action, and the kind 

of sports coverage we stand for.” With regard to the second element, the Gazette used the Photo 

for its commercial advantage; the Photo was the focus of the Gazette’s advertisement in the 

Franklin City Journal to solicit subscriptions. Indeed, it seems that using the Photo had the 

desired effect: the week after the advertisement ran, new Gazette subscriptions in response to the 

advertisement (shown by use of the coupon) increased by 18%. Third, Jackson never consented 

to the Gazette’s use of the Photo, nor does it appear that the Gazette sought to obtain his consent 

at any time. Finally, it is presumed that Jackson will be able to show the requisite injury because 

the Gazette did not pay him for use of his image and Jackson has earned millions of dollars by 

licensing the use of his name and likeness. In reviewing a motion to dismiss, the court would 

accept as true Jackson’s allegation that the Gazette has damaged him by depriving him of a 

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Model Answer 


license fee for this use of his image and of his ability to license the use of his image to other 

sports publications. 

It is not enough for a claim under § 62 that the Gazette and Jackson know that he is the 

player sliding into home plate in the Photo. Jackson must be “readily identifiable” in the Photo. 

A plaintiff is “readily identifiable” when “one who views the photograph with the naked eye can 

reasonably determine that the person depicted in the photograph is the same person who is 

complaining of its unauthorized use.” § 62(b)(1). 

Here, the Photo shows Jackson’s back as he slid with one arm thrown up in the air. Dirt 

from the slide obscures most of Jackson’s body and uniform number and only the second zero of 

his “00” number is partially visible. Jackson’s face cannot be seen. The Franklin Blue Sox do not 

have the player’s name on the back of the team uniform, and the uniform design has remained 

the same for the last 25 years. During that time, the Blue Sox have had as many as five other 

players wearing numbers ending in “0” and who are also Caucasian, as is Jackson. 

Although the right of publicity statute preempts the common law cause of action for 

violations of that right, case law that is in accord with the statutory provisions “continue[s] to 

constitute good precedent.” Leg. History. Thus, Holt v. JuicyCo, Inc., and Janig, Inc. (Fr. Sup. 

Ct. 2001) remains good law, because in determining whether the plaintiff stated a cause of action 

under the common law right of publicity, the court considered whether he was “identifiable” 

from the use made of his image. This standard is not inconsistent with the § 62 requirement that 

a plaintiff be “readily identifiable.” 

In Holt, the plaintiff, a famous downhill skier, sued when videotape of one of his races 

was used in a TV commercial. Even though Holt’s face, name, bib number, and sponsor’s 

patches were not visible, the court held that he was identifiable for purposes of a cause of action 

given “the distinctive appearance of Holt’s suit and its potential, as a factual matter, to allow the 

public to identify Holt as the skier in the commercial.” Because the racing suit’s color and design 

were unique to Holt, a trier of fact could reasonably conclude that it was Holt, and not another 

skier, who was endorsing the product. 

By contrast, in Brant v. Franklin Diamond Exchange, Ltd. (Fr. Ct. App. 2003), a 

collegiate diving star was not identifiable in a photograph that showed only her legs and the 

bottom of her swimsuit as she entered the water after a perfect dive. Because her swimsuit was 

identical to the suits worn by all the other divers in the competition and she had no identifying 

18 



Model Answer 


scars or other features that could be seen in the photo, nor was there any indication of the venue, 

time, or event depicted, the court held that the public could not conclude that the photo was of 

Brant “as opposed to any other diver,” thus Brant could not prove facts to support her claim. 

The facts here fall on the continuum between the Holt and Brant cases. At most, there is 

enough detail in the Photo to show that the player sliding into home plate is one of the Caucasian 

Blue Sox players who has worn a number ending in “0” at some point in the last 25 years. But 

the Blue Sox currently have a total of six Caucasian players wearing numbers ending in “0.” 

Thus, the Photo could be depicting any one of these six players currently on the Blue Sox roster, 

or any one of three Caucasian players when the Photo was taken. 

The Text Accompanying the Photo Does Not Identify Jackson. 

While the Gazette’s advertisement includes the word “action,” Jackson’s nickname, it 

probably does not render him readily identifiable in the photograph. 

If the statute is strictly construed, it can be argued that only the photograph is to be 

considered when determining if an individual is identifiable. A person is readily identifiable 

“when one who views the photograph with the naked eye can reasonably determine that the 

person depicted in the photograph” is the person asserting the unauthorized use of his or her 

image. § 62(b)(1). Viewing the Photo in isolation, it is unlikely that with any confidence a 

member of the public could reasonably determine that Jackson was the player sliding into home 

plate. 

However, Jackson has a significantly stronger case if the Photo is considered in 

conjunction with the text of the advertisement. (Indeed, it would be unduly restrictive to divorce 

the Photo from the text.) It can be anticipated that Jackson will argue that from the use of the 

phrase “Get in with the action,” it is inevitable that the public would conclude that the Photo 

depicts Jackson, because he is known by the sobriquet “Action Jackson.” But such an argument 

ignores the fact that the word “action” is used as a common noun in the advertisement. Had the 

advertisement featured the exhortation to “Get in with Action,” using “Action” as a proper noun, 

a plausible argument could be made that the combination of the Photo and the word “Action” 

would readily identify the individual in the Photo as Jackson. Furthermore, the word “action” is a 

common word to use in conjunction with describing sports coverage by any media outlet. It is 

hardly so unusual as to immediately inspire a connection with Richard “Action” Jackson rather 

than with a word describing the kind of sports coverage offered. 

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Model Answer 


It appears likely that the court will conclude that Jackson is not readily identifiable in the 

Photo, and that therefore he cannot establish an appropriation of his persona under § 62. 

Even if Jackson Is Identifiable, the Gazette May Argue That Using the Photo in an 

Advertisement Soliciting Subscriptions is Within the Statute’s News Reporting Exemption. 

Pursuant to § 62(d), the use of a photograph “in connection with any news, … or sports 

broadcast or account … shall not constitute a use for which consent is required.” The issue then 

becomes whether the phrase “news, … or sports broadcast or account” encompasses the use of a 

plaintiff’s likeness in an advertisement soliciting subscriptions. At common law, this was 

referred to as the “exemption for news reporting.” Miller v. FSM Enter., Inc. (Fr. Ct. App. 1988). 

In Miller, a professional figure skater sued for the use of her photo in an advertisement 

soliciting subscriptions to Figure Skating! Magazine (FSM). The advertisement’s text did not 

mention her name, but boasted of FSM’s coverage of the sport. FSM argued that the use of the 

photo in the advertisement was for newsworthy purposes, and therefore was within the news 

reporting exemption to the right of publicity. The court agreed, distinguishing Jancovic v. 

Franklin City Journal, Inc. (Fr. Sup. Ct. 1984), wherein a photo of a hockey player, originally 

published in the defendant newspaper, was reprinted as a poster and sold to fans. With no text on 

the poster, not even the newspaper’s name, “there could be no relationship in the mind of the 

consumer between the poster and the newspaper, and more particularly the news dissemination 

function of the newspaper.” Therefore the news reporting exemption did not apply. 

In Miller, the court held that the use of the skater’s photograph “was incidental to the 

advertising of [the magazine] in relationship to its news reporting function. The use illustrated 

the way in which Miller had earlier been properly and fairly depicted by the magazine in a 

legitimate news account. It informed the public as to the nature and quality of [the magazine’s] 

news reporting.” FSM’s motive for using the photo—advertising and solicitation—did not 

determine the issue. Rather, “the common law must accord exempt status to incidental 

advertising of the news medium itself.” Nevertheless, the exemption is limited—it can apply 

only “when there can be no inference of endorsement by the individual depicted.” 

The Franklin right of publicity statute codifies the common law as set forth in Miller in 

that it also exempts use of an individual’s persona “in connection with any news, … or sports 

broadcast or account.” § 62(d). While the Franklin legislature did not use the term “news 

reporting,” and is silent with regard to ancillary uses of an individual’s photograph or image, it is 

20 



Model Answer 


reasonable to assume that the phrase “in connection with … sports broadcast or account” is 

broad enough to cover what the Miller court described as “incidental advertising of the news 

medium itself.” In addition, it can be assumed that the legislature was aware of the holding in 

Miller, and would have included statutory language to exclude ancillary uses of an individual’s 

image from the affirmative defense if it had intended the new statute to supersede Miller. 

Jackson may argue that the Gazette’s use of the Photo presents what the dissent in Miller 

referred to as an implied endorsement by Jackson of the Gazette. However, in Miller, the 

plaintiff was clearly identifiable in the photo, thus increasing the possibility that the viewing 

public could conclude that the plaintiff was endorsing the publication. But again, the majority 

rejected that view, concluding that the advertisement’s photo and text did not “tie [the plaintiff] 

explicitly to the solicitation for subscriptions.” Likewise, the text in the Gazette’s advertisement 

which directly refers to the Photo states, “Look at all you get: … award-winning photos like this 

that put you right in the middle of the action!!!” The Photo was expressly used to illustrate the 

quality of the Gazette’s news coverage. If the Gazette had wanted to ensure that the public 

connected its coverage with Jackson, the text could have mentioned “photos of Action Jackson 

and all your favorite Blue Sox players” or otherwise singled him out for notice. 

Conclusion 

It appears likely that Jackson’s complaint against the Gazette does not state a cause of 

action under the right of publicity statute, Franklin Code § 62. To state a claim, Jackson must be 

readily identifiable in the Photo. While a member of the public could assume that it is Jackson in 

the Photo, as he may be the player who most readily comes to mind when the Blue Sox are 

mentioned, given the number of other Caucasian players who wear or have worn a team number 

ending in “0” in the past 25 years, it is unreasonable to conclude that the Photo is of Jackson, as 

opposed to one of those other players. The use in the advertisement of the word “action” as a 

common noun should not alter this result. 

Further, if a court were to find that the Gazette did use Jackson’s image to its benefit 

without consent, the facts at hand could come within the affirmative defense for news reporting. 

Assuming Miller remains good law, the Gazette may make incidental use of Jackson’s image in 

advertising the newspaper. Nor under Miller do the facts support the conclusion that the use of 

the Photo is an implicit endorsement by Jackson of the Gazette. 

21

Jackson v. Franklin Sports Gazette, Inc. Grading ... - Oregon State Bar

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