US court rejects ‘character’ privacy

'Publicity right' does not extend to characters or roles, rules New York judge

An underpants-clad guitar-playing cowboy has had his privacy claim against the maker of M&Ms and its ad agency for their alleged appropriation of his likeness and persona dismissed by a New York judge, although his claim for trade mark infringement has been allowed to continue.

Robert Burck, 37, better known as the ‘Naked Cowboy’, claimed that Mars Inc’s use of a guitar-playing animated blue M&M dressed in a white cowboy hat, white cowboy boots and white underpants, the attire Burck dons whenever performing, amounted to a breach of his “right to publicity”, an aspect of privacy law which prevents the nonconsensual commercial use of individuals’ names or image, as well as an infringement of a registered trade mark of his likeness.

In a judgment with the memorable opening “This is the case of The Naked Cowboy versus The Blue M&M”, District Court Judge Denny Chin dismissed the privacy claim, ruling that the publicity right protects only the name, portrait, or picture of “a living person” and not a character “created or a role performed by a living person”; “the statutory right to privacy does not extend to fictitious characters adopted or created by celebrities”. The trade mark claim was allowed to proceed.