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Keywords

jurisdictionappealmotioncommon lawmotion to dismiss

plaintiffdefendantmotioncommon lawmotion to dismiss

Related Cases

Pooley v. National Hole-In-One Ass’n, 89 F.Supp.2d 1108

Facts

Don Pooley, a professional golfer, made a hole-in-one at the 1986 Bay Hill Classic, winning a million dollars. The National Hole-in-One Association produced a promotional videotape of the event, using Pooley's name and footage without his consent. Pooley alleges that this unauthorized use invaded his right of publicity. The case was brought to the federal district court in Arizona after being removed from state court based on diversity jurisdiction.

Issue

Did the National Hole-in-One Association's use of Don Pooley's name and likeness in a promotional videotape constitute an invasion of his right of publicity?

Rule

The common law right of privacy protects against four categories of invasion, including appropriation of a person's name or likeness for commercial advantage. The incidental use doctrine does not apply if the use of a person's identity is integral to the commercial purpose of the advertisement. The First Amendment does not protect commercial uses of a person's identity.

The common law right of privacy provides protection against four distinct categories of invasion: (1) intrusion upon plaintiff's seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about plaintiff; (3) publicity which places plaintiff in false light in public eye; and (4) appropriation, for defendant's advantage, of plaintiff's name or likeness.

Analysis

The court found that the use of Pooley's name and footage was not incidental but rather central to the advertisement's appeal. The promotional nature of the videotape, which highlighted Pooley's unique achievement, was crucial for attracting interest in the fundraising event. Therefore, the incidental use doctrine did not apply, and the First Amendment's protections for free speech did not extend to this commercial use.

The Court finds that Defendant's inclusion of Plaintiff's name and hole-in-one for a million dollar ace was integral to Defendant's advertisement and clearly enhanced the marketability of Defendant's service. The incidental use doctrine does not apply.

Conclusion

The court denied the National Hole-in-One Association's motion to dismiss, recognizing Pooley's right of publicity claim and ruling that the use of his identity was not protected by the First Amendment.

Accordingly, IT IS ORDERED that Defendant's Motion to Dismiss (Document 16) is DENIED.

Who won?

Don Pooley prevailed in this case as the court recognized his right of publicity claim against the National Hole-in-One Association. The court determined that the association's use of Pooley's name and likeness was not incidental to their promotional efforts but rather a key element that enhanced the marketability of their fundraising services. This ruling underscored the importance of consent in the commercial use of an individual's identity.

Don Pooley prevailed in this case as the court recognized his right of publicity claim against the National Hole-in-One Association.

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