Wednesday, May 2, 2007
The District Court for the Middle District of Pennsylvania is allowing a jockey's case against a feed manufacturer to proceed, ruling that the jockey, Jeremy Rose, has stated claims of invasion of privacy and right of publicity sufficient to overcome the defendant's 12(b)(6) motion to dismiss. The defendant had used a photograph of Mr. Rose taken by a third party "without plaintiff's knowledge or consent and then used it in its advertisements and on its bags of feed." The defendant moved to dismiss the plaintiff's case, claiming that "a plaintiff must allege that there was an intentional intrusion into the seclusion of his or her private concerns which was highly offensive to a reasonable person." With regard to the right of publicity claim, the defendant claimed that "Pennsylvania has not recognized a cause of action for misappropriation of commercial value of his identity." Plaintiff responded that although the Supreme Court of Pennsylvania has not ruled on this issue, at least one lower court had recognized the right of publicity, and the District Court agreed.
The court analyzed the case as follows. "First, we note that although similar, the right of publicity is not identical to invasion of privacy by appropriation of name or likeness. Invasion of privacy by appropriation of name or likeness does not require the appropriation to be done commercially....As just mentioned, the right of publicity protects against commercial loss caused by appropriation of a name or likeness. In other words, the invasion of privacy by appropriation of name or likeness is a personal right created to protect one's privacy, while the right of publicity more closely resembles a property right created to protect commercial value. Second, we do not find it particularly important that plaintiff labeled the second count of his complaint as “Misappropriation of Plaintiff's Commercial Value of His Identity Commercial Value.” This count clearly alleges the elements required for a right of publicity claim. Furthermore, plaintiff clarified that he was asserting a right of publicity claim in this count in his opposition to defendant's motion to dismiss....Finally, we think it is clear that plaintiff's complaint has alleged a cause of action based on the right of publicity. He has alleged that defendant used his photograph without authorization and for its own commercial advantage."
The case is Rose v. Triple Crown Nutrition Inc., (U.S.D.C., M.D. Pa.); 35 Med.L.Rptr. 1545; 2007 U.S. Dist. LEXIS 14785; 82 U.S.P.Q.2D (BNA) 1222; 2007 WL 707348 (M.D.Pa., 2007).