Henley v. Dillard Department Stores
46 F. Supp. 2d 587, 1999 WL 239362 (1999)
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Rule of Law:
The unauthorized commercial use of a celebrity's identity, including through a 'play on words' with their name, constitutes misappropriation of their right of publicity if it is done to attract consumer attention, regardless of whether the defendant ultimately profited from the use.
Facts:
- Donald Hugh Henley is a famous rock musician, well-known as a founder of the band The Eagles and for his successful solo career.
- Dillard Department Stores, a retailer, placed a newspaper advertisement in September 1997 to sell a type of shirt known as a 'henley'.
- The advertisement featured a photograph of a man wearing the shirt.
- The ad copy read, 'This is Don' with an arrow pointing to the man's head, and 'This is Don's henley' with an arrow pointing to the shirt.
- Additional text stated, 'Don loves his henley; you will too.'
- The ad's creators later testified that they intentionally used the phrase 'Don's henley' as a 'play on words' to reference the musician Don Henley and make the advertisement more interesting to consumers.
Procedural Posture:
- Donald Hugh Henley (Plaintiff) filed a complaint against Dillard Department Stores (Defendant) in the U.S. District Court (trial court).
- The complaint alleged claims including misappropriation of name and likeness, unjust enrichment, and unfair competition.
- Dillard previously filed a Motion to Dismiss / Motion for Summary Judgment, which the court denied.
- Henley subsequently filed a Motion for Partial Summary Judgment on his claim for misappropriation of name and likeness.
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Issue:
Does a newspaper advertisement that uses a 'play on words' with a celebrity's name to sell a product constitute misappropriation of that celebrity's name or likeness under Texas law?
Opinions:
Majority - Solis, District Judge
Yes, the newspaper advertisement constitutes misappropriation of Donald Hugh Henley's name and likeness. The court applied the three-part test for misappropriation: 1) The defendant appropriated the plaintiff's name or likeness for the value associated with it, and not in an incidental manner. Dillard's employees admitted they intended the 'play on words' to attract consumers by associating the ad with the celebrity Don Henley. This was a deliberate appropriation for its commercial value, not an incidental use. 2) The plaintiff can be identified from the publication. The court found that because the ad creators intended the association and survey evidence showed a significant number of consumers made the connection, Henley was reasonably identifiable. An earlier draft of the ad that included Henley's song titles further proved the intent to identify him. 3) There was some advantage or benefit to the defendant. The court clarified that the 'benefit' does not require the defendant to show a net profit. The benefit was the commercial advantage of attracting consumer attention by using a celebrity's identity for free, which is precisely what the right of publicity protects against. The fact that the ad campaign may have lost money is irrelevant.
Analysis:
This decision significantly clarifies the 'benefit' element within the tort of misappropriation, establishing that a tangible profit is not required. The key is the defendant's intent to derive a commercial advantage, such as increased consumer attention, by exploiting the celebrity's identity. This case strengthens the right of publicity by making it clear that indirect or clever appropriations, such as puns or 'plays on words,' are actionable if they successfully evoke the celebrity's persona for commercial purposes. It serves as a strong deterrent against advertisers attempting to benefit from a celebrity's fame without permission or payment.
