Cheatham v. Paisano Publications, Inc.
891 F. Supp. 381 (1995)
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Rule of Law:
A person need not be a celebrity to state a claim for appropriation of likeness; a claim is viable if the person's identity has commercial value, which can be established by the distinctiveness of the identity and the degree of recognition among a specific audience.
Facts:
- Plaintiff designs and wears unique clothing, displaying them at bikers' events.
- At a bikers' festival in Chillicothe, Ohio, Plaintiff wore a distinctive pair of blue jeans with cutouts on the posterior replaced by fishnet fabric.
- Paisano Publications published a photograph of Plaintiff's backside in this outfit in its 'In the Wind' magazine as part of a photo essay, without identifying her.
- Approximately a year and a half later, Shurte Graphics, Inc. began manufacturing and selling T-shirts that featured a drawing which was a near-exact replica of the photograph of Plaintiff.
- Paisano's 'Easyriders' magazine then published an advertisement for the T-shirt sold by Shurte Graphics.
- Plaintiff asserts that her friends and customers recognize her unique designs and identified the drawing on the T-shirt as being her likeness.
Procedural Posture:
- Plaintiff sued Paisano Publications and Shurte Graphics, Inc. in U.S. District Court.
- Plaintiff filed a Complaint and subsequently a First Amended Complaint alleging five causes of action, including invasion of privacy and misappropriation of an image.
- Both Defendants filed separate motions to dismiss all of Plaintiff's claims against them.
- Plaintiff filed a motion for leave to file a Second Amended Complaint to add claims for intentional infliction of emotional distress and interference with prospective business relations.
- Plaintiff also moved for partial summary judgment on the issue of liability.
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Issue:
Under Kentucky law, does the unauthorized commercial use of a non-celebrity's distinctive image, recognizable only to a specific group, constitute an actionable appropriation of likeness?
Opinions:
Majority - Heyburn, District Judge
Yes, the unauthorized commercial use of a non-celebrity's distinctive image can constitute an actionable appropriation of likeness. Kentucky has adopted the Restatement (Second) of Torts, which recognizes a cause of action for the appropriation of another's name or likeness, often referred to as the 'right of publicity.' The court rejected the defendants' argument that this right is exclusively for celebrities, holding that the proper standard is whether the plaintiff's identity has commercial value. To succeed, a plaintiff must prove she developed a property interest in her likeness by showing her image has commercial value and that she intended to profit from it. Because Plaintiff alleged her designs are unique and that she is recognizable to her customers and friends, her claim is sufficient to survive a motion to dismiss, even though her face was not shown.
Analysis:
This opinion clarifies that under Kentucky law, the right of publicity is not limited to famous individuals. It establishes that a private person can protect the commercial value of their identity if it is distinctive and recognizable within a particular community, even a niche one. This decision expands the potential for appropriation claims beyond traditional celebrities to include individuals like artists, designers, or modern-day influencers who have cultivated a unique and commercially valuable persona. The ruling shifts the focus from the level of fame to the demonstrable 'commercial value' of the identity as the key element for a right of publicity claim.
