DAMAGES
Specific Case Law on Fair Market
Value of a Right of Publicity
Many cases have been decided that establish various parameters
for the value of one's right of publicity. The following cases
establish the range of values that a celebrity's involvement
in a commercial setting have yielded through litigation during
the past two decades:
Cher v. Forum International, Ltd., 213 USPQ 96 (CD Cal
1982). The court recognized the fair market value of Cher's
name and picture appearing in a single advertisement for
Forum magazine as $100,000. The entertainer had never
agreed to endorse the publication. Cher was awarded total
damages of $325,000 plus costs and attorney's fees.
- Genesis Publications v. Goss, 437
So. 2d 169 (Fla App 1983). This case involved an award
of $100,000 for the unauthorized use of nude photo of
model Anne Goss in an advertisement published in Genesis
magazine.
Apple Corps Ltd v. Leber, 229 USPQ 1015 (Cal Super 1986).
The "Beatlemania" case involved an award of
$7.5 million based on "the reasonable value of what
the defendant has taken" - the value of a license
from the Beatles, for the performances by Beatles imitators
and a movie made of the performance.
- Felice v. Delporte, 136 AD2d 913,
524 NYS2d 919 (1988). This case involved an appeal granted
in part prior to settlement, 72 NY2d 829, 530 NYS2d 549,
526 NE2d 40 (1988), with a verdict of $150,000 for the
use of a photo of a model which use was held to be beyond
the permissible scope of the model's release signed by
the model for certain limited uses of her name and image.
Sinatra v. National Enquirer, Inc., 854 F2d 1191 (9th
Cir 1988). This case involved a Swiss medical clinic which
planted a false story in the National Enquirer that Frank
Sinatra had received treatment at the clinic. Court awarded
$350,000 in compensatory damages for the unlicensed use
of his name and $100,000 in punitive damages.
- Neva Incorporated v. Christian Duplications
International Incorporated, 743 F Supp 1533, 15 USPQ2d
1024 (MD Fla 1990). In this case, Neva received $75,000
in compensatory damage for the unauthorized sale of audio
tapes of the late Alexander Scourby, who was relatively
unknown, reading passages of the Bible.
Joe
Frazier v. South Florida Cruises 19 USPQ 2d 1470 (ED pa
1991) This case involved a cruise line which falsely advertised
that the boxing champion would be vacationing on the ship.
The jury awarded Frazier $45,000 "for the commercial
value of his name in this context."
- Midler v. Ford Motor Co., 849 F.2d
460 (9th Cir. 1988) In this case, singer Bette Midler
was awarded $400,000 for the unauthorized use of a performer
imitating Midler's voice singing a song that was popularized
by Midler, in a television advertisement for Ford Motor
Company.
Waits v. Frito-Lay, Incorporated, 978 F2d 1093, 23 USPQ2d
1721 (9th Cir 1992) In Waits, singer Tom Waits was granted
$100,000 for the "fair market value" of his
voice when Frito-Lay imitated his distinctive vocal sound
in a Doritos chip advertisement. Waits was awarded total
damages of $2.5 million, including punitive damages and
attorney's fees.
- White v. Samsung Electronics Am.,
Inc., 971 F. 2d 1395 (9th Cir. 1992). Game show host Vanna
White was awarded $403,000 when Samsung used a robot wearing
a blond wig, jewelry and a dress, which turned letters
on a game board similar to Vanna White's role on the game
show Wheel of Fortune. While Vanna White's name was not
used, the robot was held to constitute the likeness of
Ms. White.
Ventura
v. Titan Sports, 65 F.3d 725 (8th Cir 1995). In this case,
the court awarded the former professional wrestler turned
politician Jesse Ventura $810,000 as compensation for
his right of publicity performance rights embodies in
nine videotapes that were sold based on an expert witness'
testimony as to the going market rate for video royalties
paid to performers in similar circumstances.
- Rufo v. Orenthal James Simpson, 86
Cal.App. 4th 573 (2001). In this case, the author of this
report, Mark Roesler, served as the expert for the plaintiffs
in evaluating the proper measure of punitive damages against
O.J. Simpson in the wrongful death of his former wife,
Nicole Brown Simpson, and her friend, Ronald Goldman.
The punitive damages were based on an evaluation of Simpson's
potential revenue from his name, image and likeness through
out his lifetime. Mr. Roesler's valuation was that the
value of Simpson's right of publicity during only the
remaining years of his life was $25 million. It was that
exact amount that was then awarded by the jury. Simpson
appealed the verdict claiming the amount was excessive,
but earlier this year (2001), the appellate court upheld
the amount.
Most recently, the case of Dustin Hoffman v. Capital Cities/ABC,
Inc., shows that the fair market value of a celebrity
is on the increase. While the decision by the U.S. District
Court in 1999 was overturned by Hoffman v. Capital Cities/ABC,
Inc., 255 F. 3d 1180 (9th Cir. 2001), the appellate decision
turned on First Amendment issues, and did not involve
an examination of the lower court's determination of Mr.
Hoffman's fair market value. As such, the lower court
decision is still useful in this context. By using a still
shot of Dustin Hoffman in his role as Tootsie which was
then digitally altered to make it appear as though Hoffman
was wearing a Richard Tyler gown and Ralph Lauren heels,
Los Angeles Magazine was found to have infringed on Hoffman's
right of publicity. In part, this was due to the fact
that the fashion designers who were promoted through this
use were primary advertisers of the publication. Further,
this is the type of use for which celebrities and models
are routinely compensated. However, the appeal turned
on whether the use was protected by the First Amendment,
with certain elements of parody. The lower court, in holding
for Hoffman, ruled that Hoffman was entitled to compensatory
damages in the amount of $1,500,000, "which represents
the fair market value of the right to utilize Mr. Hoffman's
name and likeness in the manner in which it was used by
Los Angeles Magazine."
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