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

Multistate Performance Test
Model Answer
Jackson v. Franklin Sports Gazette, Inc.
reasonable to assume that the phrase “in connection with … sports broadcast or account” is
broad enough to cover what the Miller court described as “incidental advertising of the news
medium itself.” In addition, it can be assumed that the legislature was aware of the holding in
Miller, and would have included statutory language to exclude ancillary uses of an individual’s
image from the affirmative defense if it had intended the new statute to supersede Miller.
Jackson may argue that the Gazette’s use of the Photo presents what the dissent in Miller
referred to as an implied endorsement by Jackson of the Gazette. However, in Miller, the
plaintiff was clearly identifiable in the photo, thus increasing the possibility that the viewing
public could conclude that the plaintiff was endorsing the publication. But again, the majority
rejected that view, concluding that the advertisement’s photo and text did not “tie [the plaintiff]
explicitly to the solicitation for subscriptions.” Likewise, the text in the Gazette’s advertisement
which directly refers to the Photo states, “Look at all you get: … award-winning photos like this
that put you right in the middle of the action!!!” The Photo was expressly used to illustrate the
quality of the Gazette’s news coverage. If the Gazette had wanted to ensure that the public
connected its coverage with Jackson, the text could have mentioned “photos of Action Jackson
and all your favorite Blue Sox players” or otherwise singled him out for notice.
Conclusion
It appears likely that Jackson’s complaint against the Gazette does not state a cause of
action under the right of publicity statute, Franklin Code § 62. To state a claim, Jackson must be
readily identifiable in the Photo. While a member of the public could assume that it is Jackson in
the Photo, as he may be the player who most readily comes to mind when the Blue Sox are
mentioned, given the number of other Caucasian players who wear or have worn a team number
ending in “0” in the past 25 years, it is unreasonable to conclude that the Photo is of Jackson, as
opposed to one of those other players. The use in the advertisement of the word “action” as a
common noun should not alter this result.
Further, if a court were to find that the Gazette did use Jackson’s image to its benefit
without consent, the facts at hand could come within the affirmative defense for news reporting.
Assuming Miller remains good law, the Gazette may make incidental use of Jackson’s image in
advertising the newspaper. Nor under Miller do the facts support the conclusion that the use of
the Photo is an implicit endorsement by Jackson of the Gazette.
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