Lamar Jackson (“Jackson”), Baltimore Ravens Quarterback and reining Most Valuable Player of the National Football League (“NFL”), has filed a lawsuit against Amazon.com, Inc. and Amazon.com Services Inc. (collectively, “Amazon”) seeking to prevent the sale of unlicensed merchandise. See Jackson v. Amazon.com, Inc. et al., Civil Action No. 20-cv-60627 (RKA) (S.D. Fla. 2020) (the “Lawsuit”). The Lawsuit is largely based on Jackson’s “right of publicity.”
The “right of publicity” refers to the right of a person to control the commercial use of his or her identity or characteristics. It generally protects a person’s name, voice, signature and likeness, although it may, depending on the circumstances, also protect a person’s nickname, stage name, pen name, picture, sound and “persona,” which are generally defined as those elements that identify a person. The right of publicity is a state law right that has no specific counterpart in federal law. Some states have specific statutes that address it, while others provide for it under their common (i.e., case) law. While cases invoking the right of publicity often involve celebrities, the majority view in those states that recognize the right is that it applies equally to non-celebrities as well. Without a doubt, a celebrity’s right will typically have greater economic value, but this merely relates to the amount of damages and not the existence of the right.
Here, Jackson seeks to prevent the sale of certain unlicensed merchandise which utilizes names and slogans that he contends the public associates with him, including “Lamarvelous”, “Action Jackson” and “Not Bad for a Running Back.” Jackson alleges that the sale of such merchandise damages his own clothing line business. In addition, Jackson contends that this is not merely the case of third parties selling unlicensed merchandise on an Amazon platform, but instead, Amazon itself selling the merchandise. The unlicensed items, for example, are advertised with the designation “ships from and sold by Amazon.com.”
The Lawsuit asserts claims for: (i) violations of Jackson’s right of publicity under a Florida statute; (ii) false advertising and endorsement in violation of the Lanham Act (federal trademark law); (iii) deceptive and unfair practices under Florida law; and (iv) violations of Jackson’s common law right of publicity. Jackson seeks, inter alia, an injunction preventing Amazon from continuing to sell the unlicensed goods, actual damages, disgorgement of profits, statutory damages, punitive damages, and attorneys’ fees and costs.
Notably, many of the disputed items do not actually incorporate the name “Lamar Jackson.” We note, for example, a T-shirt emblazoned with “LAMARVELOUS” (alone) in all capital letters, and a hooded sweatshirt with “NOT BAD FOR A RUNNING BACK” similarly displayed. One could envision a defense that these items do not reference Jackson, per se, and therefore do not violate his right of publicity. The description of the T-shirt on Amazon, however, is “LAMARVELOUS Vintage Baltimore Football QB Jackson MVP T-Shirt.” Likewise, the description of the sweatshirt is “Not Bad for a Running Back Baltimore Maryland QB #8 Jackson Football Fans Sarcastic Design.” Thus, the manner in which these items are marketed demonstrates that Jackson’s publicity rights are being utilized.
Jackson allegedly requested that the unlicensed items be removed through Amazon’s internal take down procedures, but Amazon failed to comply. This is not entirely surprising, given that Amazon’s take down procedures are primarily focused on situations where the complainant has a registered trademark or copyright. In contrast, here the rights asserted – most notably, Jackson’s right of publicity – is not a registered right.
For decades, GRIMES LLC has been actively engaged in protecting, licensing and enforcing the intellectual property rights of its celebrity and non-celebrity clients. We will continue to monitor this case and will provide updates as warranted.
