Kimbrough v. Coca-Cola/USA
521 S.W.2d 719, 1975 Tex. App. LEXIS 2594 (1975)
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Rule of Law:
In Texas, a public figure has a justiciable cause of action for the unauthorized commercial appropriation or exploitation of their name and likeness, and any consent asserted as a defense must be as broad and inclusive as the complained-of commercial use.
Facts:
- Coca-Cola/USA, Sports Communications, Inc., and Bill Sansing (defendants) developed a plan for a series of advertisements in local sports publications.
- Defendants contacted sports information directors of Southwest Conference schools, requesting them to name an outstanding former football player from their institution.
- John Kimbrough was selected to represent Texas A&M and was notified by Bill Sansing of the plan to honor top players in Southwest Conference football history with paintings.
- Sansing's letter to Kimbrough stated that he would receive an original painting, reproductions would go to his school and the Texas Sports Hall of Fame, and there was a 'contemplated use of these paintings in a series of institutional advertisements' in behalf of college football, explicitly noting 'no endorsement of any product is implied.'
- Kimbrough responded by handwritten letter, indicating acceptance, stating he was 'honored to represent Texas A & M' and 'agreed to pose for the picture.'
- Kimbrough later learned from his daughter that his picture had been part of a Coca-Cola advertisement published in a football game program.
- Kimbrough testified in his deposition that he did not contemplate or consent to the use of his name and picture in an advertisement with the commercial aspects of the one published.
Procedural Posture:
- John Kimbrough sued Coca-Cola/USA, Sports Communications, Inc., Bill Sansing, and Dave Campbell in a trial court, seeking damages for the unauthorized exploitation of his name, picture, and reputation for commercial purposes.
- A non-suit was entered as to Dave Campbell, removing him from the litigation.
- The remaining defendants (Coca-Cola/USA, Sports Communications, Inc., and Bill Sansing) filed a joint motion for summary judgment, arguing Kimbrough had consented to the use of his likeness.
- The trial court granted the defendants' motion for summary judgment, effectively dismissing Kimbrough's case.
- Kimbrough appealed the trial court's summary judgment ruling to the Court of Civil Appeals of Texas, Waco, as the appellant.
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Issue:
Does a public figure in Texas have a cause of action for the unauthorized commercial exploitation of their name and likeness, and can a defendant's summary judgment motion be granted when there is a factual dispute regarding the scope of the plaintiff's consent for such use?
Opinions:
Majority - Raleigh Brown, Justice
Yes, a public figure in Texas has a cause of action for the unauthorized appropriation or exploitation of their name and likeness for commercial purposes, and the extent of consent given for such use is a material fact issue precluding summary judgment. The court noted that while such a cause of action may not have existed under common law, many jurisdictions have acknowledged this actionable right, particularly regarding the commercialization of a public figure's personality distinct from news dissemination. The court distinguished a prior case, O’Brien v. Pabst Sales Company, by clarifying that Kimbrough sought damages for appropriation, not injury from endorsing a product. Citing Billings v. Atkinson, the court affirmed that the right of privacy, defined as 'the right to be free from the unwarranted appropriation or exploitation of one’s personality,' is justiciable in Texas. Regarding consent, the court applied the principle that 'waiver or consent must be as broad and inclusive as the act or publication complained of' and 'consent which has been exceeded is not a defense.' Given Kimbrough's testimony and the wording of the initial letter (which referred to 'institutional advertisements' and disclaimed product endorsement), a material fact issue existed as to the extent of consent granted, meaning the defendants failed to establish as a matter of law that Kimbrough had consented to the specific commercial use.
Analysis:
This case is significant for explicitly recognizing and affirming the 'right of publicity' (as an appropriation branch of the right to privacy) for public figures in Texas. It clarifies that merely being a public figure does not automatically strip an individual of control over the commercial use of their identity. The ruling underscores the critical importance of obtaining specific and comprehensive consent when using an individual's name or likeness for commercial advertising, establishing that general or limited consent will not cover broader, unauthorized commercial exploitation. This prevents companies from unilaterally capitalizing on an individual's fame without explicit, informed agreement for each specific use.
