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No reasonable jury could find that the images of members of a rap group known as “The Sugar Hill Gang” were not used by the defendants for advertising purposes in violation of N.Y. Civ. Rights Law � 51, the U.S. District Court for the Southern District of New York ruled last month, granting summary judgment for the plaintiffs on their right of publicity claims ( Robinson v. Snapple Beverage Corp., S.D.N.Y., No. 99 Civ. 344 (LMM), 6/15/00). Joseph Robinson Jr., Henry Jackson, and Michael Wright (“The Sugar Hill Gang”) performed at a party at New York’s Studio 54 to promote the 1998 Goodwill Games. The games were produced by a subsidiary of defendant Turner Broadcasting System Inc. and sponsored by co-defendant Snapple Beverage Corp. The games were a “mini” Olympics with a charitable purpose. At the party, TBS’s marketing manager asked the plaintiffs to sing a portion of their song, “Rappers’ Delight,” for inclusion in a short video promoting the games. There was some dispute between the parties as to what the plaintiffs were told regarding the use of this video. Nevertheless, the plaintiffs appeared in the video as requested, serenading a Snapple spokesperson with the song. At their own instigation, they each held bottles of Snapple beverages. That appearance was later used in a 30-second vignette shown in conjunction with a 30-second Snapple commercial during June and July 1998 over the TBS, TNT, and CNN networks. The plaintiffs brought suit alleging that the use of their images in the vignette violated Section 51, which provides a cause of action for “any person whose name, portrait, picture or voice is used within [New York] for advertising purposes or for the purposes of trade” without that person’s written consent. They moved for summary judgment on their claims. There was no dispute that the plaintiffs never consented in writing for their images or voices to be used in the vignette, Judge Lawrence M. McKenna wrote for the court. Snapple argued, however, that it was not involved in making the vignette and, therefore, it never “used” the plaintiffs’ names or voices. Both defendants argued that the plaintiffs’ names or voices were not used for advertising or trade purposes. ‘USE’ First, the court found that the evidence “belies” Snapple’s argument that it “did not contribute to or participate in the use of plaintiffs’ images and voices in the vignette.” Snapple first claimed that it did not “pay” for the vignette. But, the court said, the sponsorship benefits agreement between Snapple and the games expressly said that Snapple would receive a “benefit” of “vignettes prior to the Games with the dual purpose of promoting the Games and advertising [Snapple] Products.” Snapple paid the games a $2 million sponsorship fee “in consideration of” the rights it received. “In light of these facts,” the court found, “Snapple’s assertion that it did not pay for the vignette is rather disingenuous. While they may not have directly paid the vignette’s producer . . . they certainly paid [the games] through the sponsorship fee.” Additionally, “Snapple clearly had a high degree of input as to the content of the vignette,” the court said. For example, Snapple’s vice-president of communications, Jarmon, admitted that Snapple suggested that its spokesperson be featured in the vignette. While he may not have asked the plaintiffs to hold Snapple bottles, Jarmon admitted that he thought it was “a nice touch” and did not object to it or suggest any changes in the vignette before it was aired. “In sum, Jarmon’s purported silence regarding plaintiffs’ appearance in the vignette can only be viewed as a ratification of that appearance,” the court said. ‘ADVERTISING PURPOSES OR PURPOSES OF TRADE’ Second, the court found that the defendants used the plaintiffs’ images for “advertising purposes or purposes of trade.” Uses for “advertising purposes” or “purposes of trade” are separate and distinct statutory concepts, the court explained. The phrase “advertising purposes” has been literally construed, such that the use “must appear in or as part of an advertisement or solicitation of patronage.” Here, the vignette’s purpose was “undoubtedly to advertise both Snapple products and the Games,” the court found. Not only did the sponsorship agreement say that this was a purpose of the vignettes, it was “readily apparent in the content of the vignette.” As to Snapple, the vignettes feature Snapple’s logo and spokesperson. The plaintiffs appeared around the spokesperson, singing and holding Snapple bottles. The fact that the plaintiffs themselves asked to hold the bottles “is irrelevant to the issue of Snapple’s liability,” the court said. “Without written consent, the use of plaintiffs’ images while holding Snapple bottles, even if plaintiffs’ idea, was unlawful under Section 51.” As to TBS, the court found that the vignette was “clearly a solicitation of patronage for the Games.” While the vignette may not, “in so many words,” exhort anyone to patronize any of the games’ events, the spokesperson’s “excited description of the attractions . . . accompanied by imagery of athletes and celebrities, was undoubtedly an exhortation or encouragement to patronize the Games,” the court said. “[N]o reasonable person could conclude that the vignette was anything other than an advertisement.” Finally, the court rejected the defendants’ argument that their use of the plaintiffs’ images fell within an exemption to the statute. First, the “public interest” exemption applies only when a plaintiff’s image or voice is used for a trade purpose in conjunction with the reporting of a newsworthy event or matters of public interest. While the games were a matter of public interest, the court said, the vignette was clearly more than a report — it was a solicitation of patronage for the games. Second, the “incidental use” exemption did not apply, the court held. There are two types of incidental uses: (1) merely incidental or isolated uses — which the defendants did not argue here; and (2) uses in ads or other promotional items that prove the worth and/or illustrate the content of the matter promoted. The defendants claimed that the second incidental use exemption applied because the vignette showed the plaintiffs as an example of the “great entertainment” that accompanied the games. However, the court found that this argument failed on its face. While the plaintiffs performed at the party, there was no evidence that they ever performed at the games, the court said. Thus, their appearance in the vignette did not demonstrate the games’ “content.” The court granted summary judgment for the plaintiffs.

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