A California federal court has refused summary judgment to a marketer who asserted that references to an astronaut in marketing materials were only "incidental" or were privileged as a matter of "public interest."
Watch sellers who promoted a watch as the same as the one worn by an astronaut on the moon argued that their references to the Astronaut should be excused from attack as a violation of the retired astronaut's right of publicity because the historical reference was of no commercial value in selling the watch. The court basically suggested that if that were true the advertising would just reference that it was the same as one worn on the moon. The court confined the "public interest" exception under California law to advertising by the media or in connection with products where the individual is the product, such as trading cards. References to historical figures as part of marketing for a separate product, even where there is a relationship to the product, will not be saved by the informational aspect of the mention.
The take away is that the exceptions for the media advertising their content and a reference being too incidental to be deemed part of the marketing are both very narrow, and the use of a person's name or identity in advertising and marketing without permission is increasingly likely to result in a claim that will cost a settlement
This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.