Oklahoma Court of Civil Appeals affirms summary judgment for defendant producers of the movie Cars, holding that common law and statutory right of publicity laws do not apply to plaintiff’s car.Plaintiff Mark Brill is a stock race car driver who drives a red race car with a yellow 95 on the car. Brill filed suit against The Walt Disney Company, Pixar and consultant Michael Wallis for violation of common law and statutory right of publicity, as well as trademark infringement and deceptive trade practices. Brill alleged that the fictional character Lightning McQueen in the movie Cars, which is a red race car with a yellow 95, constitutes misappropriation of his likeness.
The lower court granted defendants’ motion to dismiss for failure to state a claim, and the appeals court affirmed (converting the order granting the motion to dismiss into an order granting a motion for summary judgment).
The court noted that there is no prior reported Oklahoma state court decision addressing the right of publicity. Brill argued that Oklahoma’s common law right of publicity is broader than the statutory right of publicity in that use of one’s identity is actionable even if one’s likeness or name is not used. The court disagreed, saying that the common law right of publicity is limited to the appropriation of “the name or likeness of another” and that statutory right of publicity protects “against the unauthorized use of certain features of a person’s identity – such as name, likeness or voice – for commercial purpose.” The court explained that the issue is whether Lightning McQueen constitutes a “likeness” of Brill as a matter of law. The court relied on the Ninth Circuit’s decision in White v. Samsung Electronics America, 971 F.2d 1395 (9th Cir.), cert. denied, 508 U.S. 951 (1993), and held “a fictional, talking, driver-less red race car with the number 95 on it cannot be construed as a likeness of a driver of a similarly colored/numbered race car.”
Regarding statutory right of publicity, a plaintiff must establish that (1) defendants knowingly used plaintiff’s name or likeness, (2) on products, merchandise or goods, (3) without plaintiff’s prior consent. According to the court, the statute only concerns the use of another person’s name, voice, signature, photograph or likeness, not the name, photograph or likeness of another person’s car. “Regardless of the purported similarities of Brill’s car to Lightning McQueen, those similarities without more simply do not equate to a knowing use of Brill’s personal likeness.”
The court distinguished this case from Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974), in which the Ninth Circuit reversed summary judgment for the defendant because the defendant’s commercial featured a driver of a car similar to the car driven by the plaintiff who was a race car driver. As the court stated, “[t]he image of Lightning McQueen raises no inference of a driver, and thus implicates no driver’s right of publicity protected by common law or statute. The law protects people’s right of publicity (as opposed to their cars). Defendants’ use of the talking car character, Lightning McQueen, in no way constitutes an unauthorized use of Brill’s likeness for commercial purposes and thus, does not violate Brill’s statutory and/or common law right of publicity as a matter of law.”
The court also held that Brill failed to demonstrate ownership of a valid trademark, rejecting Brill’s assertion that “number + color = trademark,” and held that he failed to demonstrate secondary meaning. Finally, regarding the deceptive trade practices claim, the court held that Brill provided no evidence of defendants’ intent to mislead the public about the origin of Lightning McQueen and the court noted defendants’ evidence showing how the name Lightning McQueen and the number 95 were chosen for the character in Cars.
(The appeals court issued this decision on August 23, 2010, and the plaintiff subsequently appealed to the Oklahoma Supreme Court. After the state Supreme Court denied certiorari, this decision and a mandate were issued on Nov. 30, 2010.)