General Charles E. “Chuck” Yeager (Ret.) v. Cingular Wireless LLC et al., 673 F.Supp.2d 1089 (E.D. Cal. 2009)
Back in July of 2008, TMLB reported on a case between Gen. Chuck Yeager and AT&T. Cingular (acquired by AT&T) referenced Yeager’s breaking the sound barrier in a press release on its technology to provide cellular service after disasters. Yeager sued based on missappropriation of his likeness and AT&T demurred. The court ruled Yeager had pleaded sufficiently and denied AT&T’s motion. Read the original post here.
Well, AT&T is back and this time, it’s aiming an MSJ.
Defendant AT&T raised two defenses in its motion for summary judgment: a first amendment defense protecting its speech as noncommercial comment on newsworthy matters and a defense under the doctrine of incidental use.
The court held that Defendant’s press release was in fact commercial speech its central theme is promoting how its emergency preparedness program enhances its wireless services. Defendant’s name is mentioned through out the publication, and it was intended in part to create positive associations with the AT&T brand.
Defendant’s use of Plaintiff’s name was also not newsworthy because it was unrelated to the purportedly newsworthy aspect of Defendant’s publications (discussing its emergency preparedness service in the wake of recent hurricanes).
The court could not conlcude that Defendant’s use was incidental when the publication mentioned Plaintiff’s name in order to pique interest of a newsman deciding whether to follow up on a press release.
The court also held that Plaintiff had presented sufficient evidence regarding likelihood of confusion to withstand summary judgment. The court could not hold that the use was nominative fair use in the summary judgment context because there is a triable issue of fact when a celebrity is mentioned in a commercial as to whether that mention results in the suggestion of an endorsement.