Just Another Brown-Eyed Girl: Toward a Limited Federal Right of Publicity Under the Lanham Act in a Digital Age of Celebrity Dominance
Note by Susannah M. Rooney
From Volume 86, Number 4 (May, 2013)
Imagine this: Elle, an attractive blonde, brown-eyed female in Boston becomes an overnight celebrity for her YouTube video series, “Chasing Rings,” in which she bemoans the modern dating world in the form of her self-produced rap songs. In each video, Elle wears a different pink shirt. As her video blog continues to gain popularity, a New York clothing company develops an online advertising campaign supporting the legalization of gay marriage. The campaign is displayed on online news and social networking sites. One of the men featured in the ad wears a long blonde wig, has large brown eyes, and wears a pink tank top; the other is dressed in traditional male garb. The ad states, “He liked it, but he couldn’t put a ring on it.” The phrase, closely paralleling a well-known pop lyric, is used with pop celebrity Beyoncé’s permission. Elle, a law student, decides that this ad appears to reference her and decides to sue under her state-law right of publicity. Since the ads were displayed nationally, she hires an attorney to sue under Indiana law because she thinks she has the best chance of winning her case in that state. After initial discovery, the gay rights campaign agrees to settle the case for five million dollars because it thinks that Elle is likely to prevail. The ad campaign is shut down and the company is forced to downsize.
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