Last month we reported on the unusual “right of publicity” case involving Harris Faulkner and Hasbro (“A plastic hamster by any other name…”). You may recall that Hasbro, a toy manufacturer, released a line of plastic toy animals with real sounding names, including a toy hamster named “Harris Faulkner.” It turned out that Harris Faulkner is also the name of a FOX News personality who is very protective of her name and her public persona. She was so upset by the use of her name in relation to a plastic toy rodent (and, at least as she claims, a similarity between the facial features of the toy and of herself) that she filed suit against Hasbro for $5 million alleging, among other things, infringement on her right of publicity. The case is just getting underway in New Jersey District Court.
Now, another well-known personality, this one a European footballer, has had to start his own legal proceedings when he discovered that a Hong Kong toy manufacturer had used his likeness and his first name to produce a World War II Nazi doll (or “action figure” for the male doll collectors out there). German tabloid Bild recently reported that Manchester United midfielder Bastian Schweinsteiger (who also plays as the captain for the German national team) had retained lawyers to begin proceedings in order to prevent sales of the 30cm figure. Due to retail for about $120.00, the doll is being manufactured by Dragon in Dream, a company that is known for producing collectible dolls dressed in period costume, especially military figures from World War II and the modern era. It comes with outfit changes, including a white winter jacket and gloves, and other accessories such as two loaves of bread and a set of mess tins.
Bild labeled the doll a “dirty Chinese slur” against the captain of the German football team who is a hero to many of his countrymen and women. And, German media lawyer Ulrich Amelung told the paper that he believed Schweinsteiger would have strong legal grounds on which to stop the doll from being sold.
“This is a clear violation of Schweinsteiger’s personal rights. Every person has the right to their own image. Furthermore the depiction of a swastika-wearing Wehrmacht soldier constitutes gross defamation and offence,” he said.
In response and rather remarkably, Patrick Chan, a spokesman for Dragon in Dream, told Bild that any resemblance to Schweinsteiger was a coincidence. He added: “The figure is based on a typical German. We believe that all Germans look like that.”
In the United States, the laws protecting the “right of publicity” (sometimes referred to as “personality rights”) vary from state to state, but, generally speaking, the right of publicity prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of one’s persona and it gives an individual the exclusive right to license the use of their identity for commercial promotion. The right of publicity is largely protected by state common law or statutory law even though only about half the states have distinctly recognized a right of publicity and many of these do not recognize a right by that name but protect it as part of the Right of Privacy.
In other states, the right of publicity is protected through the law of unfair competition and actions for misappropriation or for a wrongful attempt to “pass off” the product as endorsed or produced by the individual protect that right. And thirdly, if a person can establish an aspect of his or her identity as a trademark, protection may be provided by Federal law especially where a person’s identity is used to falsely advertise a product or to designate its origin.
Why It Matters. Nobody wants their likeness used on a toy Nazi.