Harris Faulkner, a Fox News anchor, is suing toy company Hasbro,
for false endorsement, unfair competition, and violation of her right to
publicity, claiming that Hasbro used her likeness without authorization to
create a “Harris Faulkner” toy hamster, which is part since 2014 of Hasbro’s “Littlest
Pet Shop” line. The case is Harris
Faulkner v. Hasbro, 2:15-cv-06518.
The complaint details two decades of Plaintiff’s experience
and notes that Plaintiff does not endorse any products, as this “would be a breach of journalistic ethics,
would directly harm her professional credibility, and would be in violation of
her contractual obligations to her employer.”
The fact that this toy is manufactured and sold by Hasbro “is extremely concerning and distressing to [Plaintiff].”
The toy is labeled a choking hazard, and this made Plaintiff “extremely distressed [as] her name has been
wrongly associated with a plastic toy that is a known choking hazard that risks
harming small children.” Also, “Hasbro’s
portrayal of Faulkner as a rodent is demeaning and insulting.”Since this is
back-to-school season, perhaps this could be a useful line for parents asked to
shelter their kid’s class gerbil for the weekend: rodents are bad, not cute,
little Timmy, say bye bye to gerby!
New Jersey Recognizes
a Common Law Right to Publicity
New Jersey does not have a right of publicity statute, but
has a common law right of publicity. The complaint does not cite any case law,
nor does it go into the details of what are the elements of a common law right
of publicity claim in New Jersey, so I did some research. New Jersey recognizes
a right to publicity since 1907, date of the Edison v. Edison Polyform Mfg. Co. case, where Thomas Edison successfully
claimed that defendant could not use “Edison Polyform” as the name of a painkiller
he manufactured, even though he had bought the painkiller formula created by
Thomas Edison himself. However, Defendant had not followed exactly the original
formula, and also had used Thomas Edison image in its advertising, thus creating
the false impression that the famous
inventor had endorsed the product.
Under this case law, Plaintiff in our case could claim that
Hasbro used her name without authorization. However, she would need to prove
that plaintiff meant to use HER name, not a generic HARRIS FAULKNER name. The
complaint claims that Plaintiff is “uniquely
named” but Faulkner is, after all, also the name of a famous writer, and Harris is still a
pretty common name, albeit not for a woman. I must confess that I did not
know Plaintiff’s name until today, and believe that she is mostly known by regular
Fox News viewers and by television and media buffs.
Defendant would have to explain to the court why it chose
this particular name for its toy. If, say, the Hasbro main designer is named Joe
Harris, and he wrote his MA thesis on “Hamsters in the Works of William
Faulkner,” this may get the attention of the judge.
But imitating a person is also considered to be a right of
publicity violation in New Jersey, as recognized by the District Court of New
Jersey in 1981 in the Estate
of Presley v. Russen case, and so, in our case, Plaintiff could argue that
the toy imitates her, if she can convince the court that the toy bears at least
some resemblance to her.
Is there a physical resemblance
between the anchor and the toy?
The complaint states that the toy “bear[s] a physical resemblance to [Plaintiff]’s traditional
professional appearance, in particular the tone of its complexion, the shape of
its eyes, and the design of its eye makeup.”
I would be hard-pressed to find much physical resemblance,
if any, between Plaintiff and her eponymous toy, which arguably resembles Kimba, Bambi, and other big round- eyed kawaii toys (see here
or here),
and also resembles human-like manga
characters. Granted, I studied law, not zoology, but this toy does not even
look like a rodent. The plastic creature on the right looks like Simba with a comb-over, and the one
on the left looks like a cat with a bad case of pink-eye. So, I would say there
is no physical likeness between the anchor and the toy. What do you think?
Calculating Damages
in Right of Publicity Cases
Plaintiff is asking the court to award her $5,000,000 in damages,
which include actual damages and profit earned from the use of her name, likeness,
identity or persona. I recently found this not- so-recent (2008) but interesting
article on how
to calculate damages in right of publicity cases. Its author, Lawrence E.
Heller, notes that “[d]etermining which methodology a plaintiff can
effectively use to meet the burden of proving that the defendant’s profits are
attributable to the unauthorized use of the plaintiff’s image can be problematic”
and offers some clues, among them a “trailer test”, where consumers are
asked to spend poker chips on products bearing Plaintiff’s images and on others
which do not. This is a rather interesting method, but could be quite costly. Other
methods are also described.
Hasbro will probably move to dismiss. I will keep you
posted. 
1 comment:
"a breach of journalistic ethics, would directly harm her professional credibility"
And she works for Fox News??
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