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Henley v. Dillard Dep't Stores - 46 F. Supp. 2d 587 (N.D. Tex. 1999)

Rule:

The tort of misappropriation of one's name or likeness is generally referred to as the "Right of Publicity." 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.

Facts:

Plaintiff Donald Hugh Henley is a popular and critically acclaimed rock and roll musician. He began his music career in the 1970s as the founder and member of the band The Eagles. In the 1980s and 1990s, Henley maintained a successful solo career by continuing to produce platinum albums and perform on tour in concerts around the world. In 1997, Defendant Dillard Department Stores ran a newspaper advertisement for a shirt known as a "henley." The ad features a photograph of a man wearing a henley shirt with the words, "This is Don" in large print, beside the picture, and an arrow pointing toward the man's head from the words. Underneath the words is the statement, "This is Don's henley" in the same size print, with a second arrow pointing to the shirt. The advertisement also included the name of the retailer, "Dillard's." Henley brought an action alleging claims of misappropriation of name and likeness, unjust enrichment, trademark dilution under the Lanham Act, and unfair competition under the Lanham Act and the common law. Henley then filed a motion for Partial Summary Judgment specifically addresses his misappropriation claim, otherwise referred to as a claim for invasion of the right of publicity,which the trial court granted, and defendant Dillard appealed. 

Issue:

Does defendant store violate the privacy of plaintiff through its advertisements with his name and likeness?

Answer:

Yes.

Conclusion:

The court granted plaintiff celebrity's motion for partial summary judgment because it found that defendant store misappropriated plaintiff's name and likeness, that the likeness was identifiable and was not incidental, and that defendant received a benefit as a result, regardless of the profit or tangible benefit realized.

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