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Actor William M. “Sonny” Landham has not proven a public identity sufficient to support a claim of infringement of his right of publicity as a result of the marketing of an action figure based on a character he played, the 6th U.S. Circuit Court of Appeals ruled Sept. 18 ( William M. “Sonny” Landham v. Lewis Galoob Toys Inc., No. 99-5959, 6th Cir.). Affirming a lower court, the panel found further that Landham has failed to establish a claim for false designation of origin under the Lanham Act. The action figure is based on the character “Billy” portrayed by Landham in the movie “Predator,” produced by Twentieth Century Fox Film Corp. The figure, created by Lewis Galoob Toys Inc. under a license from Fox, is less than two inches tall and has no facial features. Landham sued in the U.S. District Court for the Eastern District of Kentucky, alleging infringement of his right of publicity under state law and false designation of origin under the Lanham Act. U.S. Judge Henry R. Wilhoit Jr. entered summary judgment for Galoob and Fox, finding insufficient evidence that consumers would associate the toy with Landham. RIGHT OF PUBLICITY Affirming, the 6th Circuit cited a line of cases which, it said, “make clear that although exploitation of a fictional character may, in some circumstances, be a means of evoking the actor’s identity as well, the focus of any right of publicity analysis must always be on the actor’s own persona and not the character’s.” The court acknowledged the 9th U.S. Circuit Court of Appeals ruling in White v. Samsung Electronics America Inc. (971 F.2d 1395) allowing a suit by television personality Vanna White over a animatronic replica of her in her role as hostess of the game show “Wheel of Fortune,” but found that case distinguishable. “First, the holding is factually distinguishable, as White used her own name in her television role, and also produced evidence that her identity was invoked and had commercial value,” the panel said. “More importantly, we share, as we think the Kentucky courts would, [dissenter] Judge Kozinski’s unwillingness to give every individual who appears before a television or movie camera, by occupation or happenstance, the right as a matter of law to compensation for every subtle nuance what may be taken by someone as invoking his identity without first being required to prove significant commercial value and identifiability.” Here, the panel said, “Landham has not demonstrated — either through direct evidence or by virtue of Galoob’s use of the ‘Billy’ character — that his persona has ‘significant commercial value’ or that the ‘Billy’ toy invokes his own persona, as distinct from that of the fictional character.” FALSE DESIGNATION Landham’s false designation of origin claim fails for the same reason, the panel said. “Noting that Landham had offered no evidence with regard to his name recognition among children, the district court correctly held that there was no genuine issue of fact material to the strength of Landham’s mark, and that given ‘the general adult nature of [Landham's] past work, it does not appear that his mark possessed any significant degree of strength among that part of society relevant to this action ‘ – the toy-buying public,” the panel said. Landham is represented by Jack Allen Wheat and Joel T. Beres of Stites & Harbison in Louisville, Ky.; Thomas M. Bertram II of Stanley & Bertram in Vanceburg, Ky.; and Stephen G. Wagner of Wagner & Mayer in Louisville. Galoob and Twentieth Century Fox are represented by Richard E. Vimont, Bernard F. Lovely Jr. and Christopher M. Parenti of Vimont & Wills in Lexington, Ky. �; Copyright 2000 Mealey Publications, Inc.

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