holding that the mention of Olympic athletes' names was incidental to the promotion of Dixie Cups, and thus not a violation of Ohio's common law right of appropriation, because the use was purely informational and there was no implication that the athletes used, supported, or promoted the productSummary of this case from Almeida v. Amazon.com, Inc.
Decided October 9, 1990.
Appeal from the Court of Common Pleas, Cuyahoga County.
Spangenberg, Shibley, Traci Lancione and John G. Lancione, for appellants.
Brown, Cummins Brown Co., L.P.A., and Robert S. Brown, for appellant Oscar Robinson.
Squire, Sanders Dempsey, Damond R. Mace and James H. Woodring, for appellees American Can Co., Minute Maid Corp. and Coca-Cola Co.
Kohrman, Jackson Krantz and Sarah Gabinet, for appellee Marden-Kane, Inc.
Burke, Haber Berick and William J. O'Neill, for appellee Spencer Marketing Services.
Charles Vinci, the 1956 and 1960 weight-lifting Olympic gold medalist, alleged that the American Can Company, Minute Maid Corporation, Coca-Cola Company, Spencer Marketing Services and Marden-Kane Company ("the companies") used his name and likeness on a series of promotional disposable drinking cups sold as Dixie Cups. Vinci sought damages for himself and the class of Olympic athletes ("the athletes") referred to on the promotional cups. In their sole assignment of error, the athletes argue that the trial court granted the companies' motion for summary judgment improvidently. Upon review of the record, we find that no genuine issue of material fact exists and that summary judgment was appropriate.
The Supreme Court of Ohio has established the standard for invasion of privacy by appropriation of the name or likeness of another:
"One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy, and the use or benefit need not necessarily be commercial." Zacchini v. Scripps-Howard Broadcasting Co. (1976), 47 Ohio St.2d 224, 1 O.O.3d 129, 351 N.E.2d 454, paragraph one of the syllabus, reversed on other grounds (1977), 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965.
The fundamental wrong is the appropriation of a person's name, likeness, or identity for one's own benefit "* * * whether or not that benefit is pecuniary." Zacchini, supra, at 229-230, 1 O.O.3d at 132, 351 N.E.2d at 458. However, mere incidental use of a person's name or likeness is not actionable under the "right of publicity." In Zacchini, the Supreme Court of Ohio quoted with approval the then-proposed Restatement of the Law 2d, Torts, Section 652C (Draft No. 13):
"`Incidental use of name or likeness. The value of the plaintiff's name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity.
"`No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded. The fact that the defendant is engaged in the business of publication, for example of a newspaper, out of which he makes or seeks to make a profit, is not enough to make the incidental publication a commercial use of the name or likeness.'" Zacchini, supra, 47 Ohio St.2d at 231, 1 O.O.3d at 132-133, 351 N.E.2d at 459, fn. 4.
Our review indicates that the mention of the athletes' names within the context of accurate, historical information was incidental to the promotion of the Dixie Cups by the partnership between the Minute Maid Corporation and the United States Olympic Committee. The reference to the athletes and their accomplishments was purely informational; there was no implication that the athletes used, supported, or promoted the product. Benally v. Hundred Arrows Press, Inc. (D.C.N.M.1985), 614 F. Supp. 969, reversed on other grounds (C.A.10, 1988), 858 F.2d 618; cf. Cher v. Forum International, Ltd. (C.A.9, 1982), 692 F.2d 634. Reference to the athletes' names, likenesses, and identities was merely incidental, historical information.
Appellants' assignment of error is overruled.
The judgment of the trial court is affirmed.
NAHRA, P.J., and VICTOR, J., concur.
MALLONE, J., dissents.
WILLIAM H. VICTOR, J., retired, of the Ninth Appellate District, and JOSEPH P. MALLONE, J., retired, of the Ashtabula County Common Pleas Court, sitting by assignment.
I respectfully dissent. I believe that a genuine issue of material fact remains to be litigated.
Summary judgment is appropriate only when it appears from the evidentiary materials that reasonable minds can come to but one conclusion, and that conclusion is adverse to the non-movant. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267; Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78, 523 N.E.2d 902. Where competing reasonable inferences may be drawn from undisputed evidence, resolution of an issue should be left for determination by a factfinder. Duke v. Sanymetal Products Co. (1972), 31 Ohio App.2d 78, 60 O.O.2d 171, 286 N.E.2d 324.
The companies maintain that their purpose in using the athletes' names on the cups was informational rather than commercial. The athletes argue that the companies' affidavit demonstrates that the Dixie Cup promotion was intended to put Dixie Cups and Minute Maid products before the public in a favorable light. They claim that the use of their names and achievements enhance the promotional value of the cups.
Evidentiary material attached to the defendants' summary judgment motion describes the purpose of the campaign, as follows:
"The purpose of this promotion is to conduct a revenue generating event which will benefit the United States Olympic Committee. An event which reinforces the Minute Maid overall three year commitment to their `partnership.' A `partnership' which by choice will have presence [ sic]. A `partnership' with the United States Olympic Team which is a natural association. Athletes directly benefit from the consumption of fruit based juices and drinks."
I believe that a factfinder could reasonably infer from the foregoing that the companies' purpose in using the athletes' names, identities and achievements was to put their products before the public in a favorable light and enhance the promotional value of the cups. Therefore, I would sustain the assigned error.