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

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