SW Legal Educational Publishing

No Misappropriation of Identity of Minor Movie Figure in Toy Based on Movie
Description Appeals court upheld the dismissal of a suit brought by a supporting actor from a movie that spawned a line of small toys. The toy does not look like the character or the actor, and there was no evidence that the persona in question had commercial value that could be misappropriated.
Topic Intellectual Property
Key Words Right of Publicity; Lanham Act; False Endorsement
C A S E   S U M M A R Y
Facts Landham played the role of "Billy, the Native American Tracker," in the 1987 Fox film called "Predator" that starred Arnold Schwarzenegger. In 1995, Fox licensed to Galoob Toys the right to produce and market a line of its "Micro Machine" toys based on "Predator." One of three sets of toys contained a "Billy" action figure. It is 1.5 inches tall and bears no personal resemblance to Landham. He sued Galoob and Fox for false endorsement under the Lanham Act and for violating his right of publicity. The district court dismissed the suit. Landham appealed.
Decision Affirmed. To assert the right of publicity, plaintiff need not be a celebrity, but must show that there is value in associating an item of commerce with his identity. Misappropriation of plaintiff's identity may be sufficient evidence of commercial value. Here, plaintiff could not show that his persona had significant commercial value or that the toy invoked his persona, as distinct from that of the fictional character. The false designation of origin claim brought under the Lanham Act by an entertainer claiming misappropriation of his identity is the equivalent to a false association or endorsement claim. The "mark" involved is the plaintiff's identity. He could not show actual or likely confusion of his identity with the toy involved.
Citation Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619 (6th Cir., 2000)

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