<strong>Grading</strong> Summary and <strong>Grading</strong> Guidelines
Multistate Performance Test GRADING SUMMARY <strong>Jackson</strong> v. <strong>Franklin</strong> <strong>Sports</strong> <strong>Gazette</strong>, <strong>Inc</strong>. The <strong>Franklin</strong> <strong>Sports</strong> <strong>Gazette</strong> has been sued by baseball star Richard “Action” <strong>Jackson</strong> for allegedly violating his right of publicity. Applicants must draft a memo analyzing whether <strong>Jackson</strong> has a cause of action (COA) under <strong>Franklin</strong>’s right of publicity statute and whether the <strong>Gazette</strong> has any arguments to oppose that COA. Applicants should conclude that <strong>Jackson</strong> is not identifiable in the Photo, and that the <strong>Gazette</strong>’s use of the Photo could fall within the statute’s news reporting exemption. Whether <strong>Jackson</strong> Has a COA under <strong>Franklin</strong>’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 <strong>Jackson</strong>’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), <strong>Jackson</strong> 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. <strong>Jackson</strong> 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,” <strong>Jackson</strong>’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 <strong>Gazette</strong>. 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 <strong>Jackson</strong>. In sum, it is likely that <strong>Jackson</strong> is not identifiable and his complaint thus fails to state a COA. Whether the <strong>Gazette</strong>’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 <strong>Gazette</strong>’s use of the Photo would likely be a permitted use under Miller. But <strong>Jackson</strong> could make a plausible argument that the use of his likeness and the word “action” could be deemed an endorsement by <strong>Jackson</strong> of the <strong>Gazette</strong>—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
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