Legally Speaking- Implied-But Unauthorized-Endorsement

By Bob Mionske

Posted Jan. 2, 2003

Legally Speaking - with Bob Mionske

(Dear Mr. Mionske(

I am a professional triathlete and have a question about a company using my picture in an advertisement in a way that implies I endorse the product (which is not true). Do I have any legal rights? I live in California, which is where the advertisement was run and where the company that ran the ad is located.(

Name withheld by request

Dear Tri-guy(

The unauthorized use of a performer or celebrity name or image may be a violation of both state and federal copyright law. The tort of “invasion of privacy, false light may have been committed. Your right of publicity may have been violated as well. On the federal level, the Lanham Act may apply.On the state level, look to California Civil Code 3344 (the Fred Astaire celebrity protection act). Leading cases that may control in your jurisdiction include Midler V. Ford, 849 f.2d 460 (9th cir. 1988) (the “sound alike” case), Presley Enterprises v. Capece, 950 F. Supp. 783 (S.D. Tex. 1996) (the “velvet Elvis” case) and Astaire v. Best Film & Video, 1997 WL 336110 (9th Cir. Jun. 20, 1997). In terms of damages, California Civil Code 3344 affords damages to a person injured by another who uses the person’s “name, voice, signature, photograph or likeness in any manner.” The company may be liable for a fixed sum and/or profits obtained by the unauthorized use of your likeness. If you simply want them to stop, consider sending a cease and desist letter with reference to the above listed controlling law.(

Good luck-Bob

Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 National Championship Road Race.After retiring from racing in 1993 he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property etc).If you have a cycling related legal question please send it to info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer on VeloNews.com. General bicycle accident advice can be found at www.bicyclelaw.com.

Important Notice:

The information provided in the "Legally speaking" column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

This article, Implied--But Unauthorized--Endorsement, was originally published on Velonews on January 2, 2003.

Now read the fine print:

 

Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.

 

After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).

 

Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.

 

If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.

 

Important notice:

The information provided in the "Legally speaking" column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.