This is a cross-post from Void for Vagueness, the blog of francesk, who is both a Basketcase and a lawyer.
Hello Patio, Hello lawsuit?
For the sake of argument let’s say that the Patio executives really loved Sal’s Patio commercial. They love it just the way it is. What it is is an exact frame by frame copy of the opening sequence to the 1963 film “Bye Bye Birdie.” An Ann-Margret wannabe recreates the scene in the ad with “Bye Bye Birdie” changed to “Bye Bye Sugar.”
Let’s further assume that the British bean counters at parent company Putnam, Powell and Lowe were willing to stick a crowbar in their wallets and pay the appropriate licensing fees (which would pre-empt any copyright issues for the film and the song, and could run anywhere from $10,000 to over $1 million in 2009 dollars. For the title song from one of 1963’s top grossing movies featuring one of the year’s hottest new stars, it could be closer to the top of the scale rather than the bottom.)
Let’s say it airs in prime time. Let’s say during “Bonanza.” Let’s say during “The Dick Van Dyke Show” and “American Bandstand.” Let’s say Ann-Margret sees the ad and has the same reaction Peggy Olson had.
That is to say she hates it.
In this hypothetical situation, Ann-Margret not only hates the ad, but she has never heard of Patio and wouldn’t drink “dietetic” soda on a bet. Did she have any legal recourse in 1963?
Well, everything is fine if PepsiCo and Sterling Cooper asked her permission.
But what if they didn’t bother to ask? What if they didn’t think they needed to? If they didn’t get permission, Ann-Margret could sue for violation of the right of publicity.
Simply put, the right of publicity is the right to control one’s identity and how it’s used. If Ann-Margret did sue Sterling Cooper, she’d become famous for something other than her acting and singing. That’s because the most significant suits involving recognizable images of pop culture figues such as Jacqueline Onassis, Frank Sinatra, Bette Midler and Tom Waits didn’t arise until the 1980s.
So, If Ann-Margaret sued Sterling Cooper in 1963, 20 years ahead of when the first suits were filed, hers would have been the first in a series of important “impersonator” cases involving a celebrity asking for an injunction and/or monetary damages because their image was used in an advertisement without their permission. Ann-Margret Olsson v. Sterling Cooper would be a landmark right of publicity case that law students would still be studying 45 years later.
But suppose Sterling Cooper (wisely) decided to scrap the Patio ad, but decided to use the singer’s voice and the jingle with different visuals that didn’t include an Ann-Margret look-alike? Based on the outcomes of existing case law, Ann-Margret would again be a legal trailblazer a good 25 years before Midler filed her famous lawsuit against Young & Rubicam. In Midler v. Ford Motor Co. 849 F.2d 460 (9th Cir. 1989), Midler refused an offer to sing her hit song “Do You Wanna Dance” in an ad for the Mercury Sable. In a move that would make Bert Cooper proud, Y&R hired one of Midler’s back-up singers to perform the song in her stead. Several years later, Waits refused a smilar offer from Frito-Lay and a “sound-alike” was found to mimic his distinctive voice. (Waits v. Frito-Lay, Inc. 978 F.2d 1093 (9th Cir. 1992).
Both artists won their suits on right of publicity claims. Midler was awarded $400,000 and Waits received $2,500,00 several years later. The Midler case turned on her claim that the impersonation featuring her distinctive vocals would lead viewers to think that she was singing the song and therefore endorsing the car. And Ann-Margret’s vocals are nothing if not distinctive.
If Ann-Margret decided to sue, it’s likely she’d prevail in what could have been a multi-million dollar lawsuit (in today’s dollars) against Sterling Cooper, which could have been disastrous for the agency. And since series creator Matt Weiner has said he’d like to see the series move into the 1970s, it’s probably a good thing the Patio folks decided to pull the plug.
Another huge lawsuit going on right now is the class action against xarelto. Thousands of people have been effected by this drug.