Name, image, and likeness (“NIL”) rights have been a “hot” topic lately. However, the focus seems to be on sports celebrities, particularly college and high school sports athletes. However, NIL and publicity rights have always applied to a much broader range of celebrities and personalities. For example, as reported here, musician and rapper Clifford “T.I.” and Tameka “Tiny” Harris have just won a $71 lawsuit against a toymaker MGA Entertainment. The jury verdict awarded the couple $17.8 million in actual damages and $53.6 million in punitive damages. See the Deadline report here.
At issue was MGA’s manufacture and sale of O.M.G. dolls that appeared to be designed and dressed to look similar to members of a band called OMG Girlz. For example, one doll had long hair that was hot pink on one side and black on the other, wearing a black and silver outfit. It was similar to what was worn by one of the band members during public performances. Likewise, a second doll had a hairstyle, in DayGlo yellow and green, that was similar to the “look” of a band member during a public performance. For a few comparison photos, see here.
The trial took three weeks in Los Angeles. During the trial, evidence was presented showing that the dolls copied the looks of the band members from various performances and public events. Evidence was also produced showing consumers and social media fans believing that, and attorneys cited social media posts from fans who thought the dolls were approved or inspired by the band because they looked so similar. The toy manufacturer disputed this evidence and argued that it did not misappropriate the identity of the band or infringe on their trade dress.
Legally, the case is interesting because it combined California state law claims concerning NIL with federal law trade dress claims under the Lanham Act. It is well known that the Lanham Act protects trademarks, but it is less well known that the Lanham Act protects trade dress. 15 U.S.C. § 1125(a). NIL rights protect the likeness and unique characteristics of a person, such as face, voice, how they walk, etc. A person who uses the NIL of another without permission can be held liable for damages.
Most think of a trade dress claim as applying exclusively to how goods and products are designed and packaged. But, the Lanham Act applies equally well to the “trade dress” of a person. The usual definition of trade dress is “the non-functional physical detail and design of a product or its packaging,” which identifies and distinguishes the product from the products of others. It is generally the “total image” or “look” of the product, including aspects like size, shape, color, color combinations, texture, etc. As said, and as shown in the O.M.G. Girlz case, trade dress also applies to the image or “look” of celebrities. The advantage of suing for trade dress infringement is the level of damages that can be claimed under the Lanham Act, including a form of disgorgement of profits. The $17.8 million obtained as damages in the case represented the profits made by MGA Entertainment from the sale of the O.M.G. dolls.
Contact The NIL and Trade Dress Infringement Attorneys At Revision Legal
For more information, contact the experienced NIL and Trade Dress Infringement Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.
