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

Multistate Performance Test
Jackson v. Franklin Sports Gazette, Inc.
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.
Grading Guidelines
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.
(30% suggested weight)
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.
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Not for Public Distribution