Specific Case Law on Fair Market Value of a Right of Publicity
Many cases have been decided that establish various parameters for the value of one’s right of publicity. The following cases establish the range of values that a celebrity’s involvement in a commercial setting have yielded through litigation during the past two decades:
- Cher v. Forum International, Ltd., 213 USPQ 96 (CD Cal 1982). The court recognized the fair market value of Cher’s name and picture appearing in a single advertisement for Forum magazine as $100,000. The entertainer had never agreed to endorse the publication. Cher was awarded total damages of $325,000 plus costs and attorney’s fees.
- Genesis Publications v. Goss, 437 So. 2d 169 (Fla App 1983). This case involved an award of $100,000 for the unauthorized use of nude photo of model Anne Goss in an advertisement published in Genesis magazine.
- Apple Corps Ltd v. Leber, 229 USPQ 1015 (Cal Super 1986). The “Beatlemania” case involved an award of $7.5 million based on “the reasonable value of what the defendant has taken” – the value of a license from the Beatles, for the performances by Beatles imitators and a movie made of the performance.
- Felice v. Delporte, 136 AD2d 913, 524 NYS2d 919 (1988). This case involved an appeal granted in part prior to settlement, 72 NY2d 829, 530 NYS2d 549, 526 NE2d 40 (1988), with a verdict of $150,000 for the use of a photo of a model which use was held to be beyond the permissible scope of the model’s release signed by the model for certain limited uses of her name and image.
- Sinatra v. National Enquirer, Inc., 854 F2d 1191 (9th Cir 1988). This case involved a Swiss medical clinic which planted a false story in the National Enquirer that Frank Sinatra had received treatment at the clinic. Court awarded $350,000 in compensatory damages for the unlicensed use of his name and $100,000 in punitive damages.
- Neva Incorporated v. Christian Duplications International Incorporated, 743 F Supp 1533, 15 USPQ2d 1024 (MD Fla 1990). In this case, Neva received $75,000 in compensatory damage for the unauthorized sale of audio tapes of the late Alexander Scourby, who was relatively unknown, reading passages of the Bible.
- Joe Frazier v. South Florida Cruises 19 USPQ 2d 1470 (ED pa 1991) This case involved a cruise line which falsely advertised that the boxing champion would be vacationing on the ship. The jury awarded Frazier $45,000 “for the commercial value of his name in this context.”
- Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) In this case, singer Bette Midler was awarded $400,000 for the unauthorized use of a performer imitating Midler’s voice singing a song that was popularized by Midler, in a television advertisement for Ford Motor Company.
- Waits v. Frito-Lay, Incorporated, 978 F2d 1093, 23 USPQ2d 1721 (9th Cir 1992) In Waits, singer Tom Waits was granted $100,000 for the “fair market value” of his voice when Frito-Lay imitated his distinctive vocal sound in a Doritos chip advertisement. Waits was awarded total damages of $2.5 million, including punitive damages and attorney’s fees.
- White v. Samsung Electronics Am., Inc., 971 F. 2d 1395 (9th Cir. 1992). Game show host Vanna White was awarded $403,000 when Samsung used a robot wearing a blond wig, jewelry and a dress, which turned letters on a game board similar to Vanna White’s role on the game show Wheel of Fortune. While Vanna White’s name was not used, the robot was held to constitute the likeness of Ms. White.
- Ventura v. Titan Sports, 65 F.3d 725 (8th Cir 1995). In this case, the court awarded the former professional wrestler turned politician Jesse Ventura $810,000 as compensation for his right of publicity performance rights embodies in nine videotapes that were sold based on an expert witness’ testimony as to the going market rate for video royalties paid to performers in similar circumstances.
- Rufo v. Orenthal James Simpson, 86 Cal.App. 4th 573 (2001). In this case, the author of this report, Mark Roesler, served as the expert for the plaintiffs in evaluating the proper measure of punitive damages against O.J. Simpson in the wrongful death of his former wife, Nicole Brown Simpson, and her friend, Ronald Goldman. The punitive damages were based on an evaluation of Simpson’s potential revenue from his name, image and likeness through out his lifetime. Mr. Roesler’s valuation was that the value of Simpson’s right of publicity during only the remaining years of his life was $25 million. It was that exact amount that was then awarded by the jury. Simpson appealed the verdict claiming the amount was excessive, but earlier this year (2001), the appellate court upheld the amount.
- Most recently, the case of Dustin Hoffman v. Capital Cities/ABC, Inc., shows that the fair market value of a celebrity is on the increase. While the decision by the U.S. District Court in 1999 was overturned by Hoffman v. Capital Cities/ABC, Inc., 255 F. 3d 1180 (9th Cir. 2001), the appellate decision turned on First Amendment issues, and did not involve an examination of the lower court’s determination of Mr. Hoffman’s fair market value. As such, the lower court decision is still useful in this context. By using a still shot of Dustin Hoffman in his role as Tootsie which was then digitally altered to make it appear as though Hoffman was wearing a Richard Tyler gown and Ralph Lauren heels, Los Angeles Magazine was found to have infringed on Hoffman’s right of publicity. In part, this was due to the fact that the fashion designers who were promoted through this use were primary advertisers of the publication. Further, this is the type of use for which celebrities and models are routinely compensated. However, the appeal turned on whether the use was protected by the First Amendment, with certain elements of parody. The lower court, in holding for Hoffman, ruled that Hoffman was entitled to compensatory damages in the amount of $1,500,000, “which represents the fair market value of the right to utilize Mr. Hoffman’s name and likeness in the manner in which it was used by Los Angeles Magazine.”