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

Multistate Performance Test
GRADING SUMMARY
Jackson v. Franklin Sports Gazette, Inc.
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.
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