Dark Bilious Vapors

But how could I deny that I possess these hands and this body, and withal escape being classed with persons in a state of insanity, whose brains are so disordered and clouded by dark bilious vapors....
--Rene Descartes, Meditations on First Philosophy: Meditation I

Home » Archives » February 2005 » Rule 1: clear the rights or get permission first....

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02/01/2005: Rule 1: clear the rights or get permission first....

Our Pals at The Smoking Gun report that NY Yankees Hall of Famer (and native St. Louisan) Yogi Berra is suing Turner Broadcasting for misappropriation of his name. As you may be aware, Turner's "TBS Superstation" is rerunning the sex drenched HBO hit, Sex and the City. As a promotion for for the show, TBS had produced bus signs and subway kiosks featuring a multiple choice quiz question:

a) A type of yo-yo trick.
b) Sex with Yogi Berra.
c) What Samantha has with a guy from yoga class.
(the correct answer, as I'm sure you're dying to know, was "c) What Samantha has with a guy from yoga class").

Anyway, Yogi alleges some of the standard complaints concerning use of his name and likeness for commercial purposes without his consent, but then also claims damages to his reputation based on his involuntary association with the show, its association with casual sex, its promiscuous supporting character (Samantha, who IIRC is the slut of Sex and the City; I can't say for sure since I never watched the show myself), and the very wording of the promotional signs:
Plaintiff is a married man and has children and grandchildren. He is a deeply religious man who has maintained and continues to maintain a moral lifestyle, and has a spotless reputation for integrity, decency and moral character with a vast public through the City and State of New York, the United States and overeseas. The direct reference to the sexual act made in connection with Mr. Berra contained in the Advertisment created, published and disseminated by the defendant engenders a moral taint that has damaged his otherwise spotless reputation, is hurtful to his personal sensibilities, and has created a false image of plaintiff that is both contrary to his personality, lifestyle and character as well as abhorrent to him personally and to his family members, friends and colleagues.
Probably should have picked another ballplayer to associate with Samantha, one whose reputation might be less sullied by an association with a casual sexual lifestyle. Um.... Wade Boggs, maybe? (Anyone even remember Margo Adams anymore? That mere 15 minutes of fame can be a bitch, can't it?)

Len on 02.01.05 @ 08:18 AM CST

Replies: 4 comments

on Tuesday, February 1st, 2005 at 9:25 AM CST, Roboto said

I wonder if TBS has a defense in that the statement about Yogi, (b), is clearly false. I wonder if making a statement that includes the name of a famous person is actionable.

on Tuesday, February 1st, 2005 at 9:52 AM CST, Len Cleavelin said

You can read the complaint on the TSG website; since you're actually practicing I'll defer to your professional opinion.

Offhand, I'm thinking that the first count of the complaint is pretty solidly in Yogi's favor; the NY Civil Rights Statute (cited in the complaint) provides that use of a person's name, likeness, etc. in commmercial advertising w/o her/his consent is a misdemeanor, and also sets up a civil action for damages and/or an injunction in such cases as well.

The second count, which is based in common law defamation (or similar), near as I can tell, may be less clear, because of the fact that Yogi is a public figure and the fact that the statement about Yogi is pretty clearly false. In any event, he'd have to prove damages to his reputation, and I'm finding it difficult to believe that Yogi's reputation for probity and impeccable sexual morals are really damaged by the ad as it appears.

on Tuesday, February 1st, 2005 at 9:54 AM CST, Karen McLauchlan said

I'm more inclined to go with the reference "is clearly satire" as EVERYONE KNOWS the plaintiff is an upstanding, moral, family man; and as satire this is "protected' First Amd. speech. (Unless Yogi is claiming it's not false...well then the truth shall set you free.)

on Tuesday, February 1st, 2005 at 10:00 AM CST, Karen McLauchlan said

The satire and word play of coining an absurd term like "yogasm" would work as a defense...as in Fox v Franken lawsuit (hilariously documented in the series The First Amendment Project) wherein the protected speech is covered "even if the object of that speech just 'doesn't get it.'"

February 2005

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