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

Multistate Performance Test
Jackson v. Franklin Sports Gazette, Inc.
Grading Guidelines
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.
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