The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
It's only February, but I think we may have a winner in the "best new legal Latinism of 2016" category already.
Sometimes courts get things right—though, of course, even the proverbial stopped clock (or, for that matter, a system deciding cases at random) gets things right, sometimes—and we should celebrate, and congratulate them, when they do.
The case is Martin v. Living Essentials LLC. The defendants produced a TV commercial in which an actor plugging 5-Hour Energy "claims to have accomplished a series of seemingly impossible feats"—including disproving relativity, swimming the English Channel and "mastering origami while beating the record for Hacky Sack"—all within the five-hour boost of energy the product purports to provide. [You can see the commercial, along with Eric Goldman's excellent analysis of the legal issues in the case, here].
Ted Martin holds the world record for most consecutive kicks of a Hacky Sack—and as the court helpfully noted: "no knees"! He sued for invasion of privacy under Illinois law and false advertising under the federal Lanham Act.
The court (Judge Tharp, ND Ill.) dismissed all the claims, in a very nicely written, and nicely reasoned, opinion (worth reading, available here).
Oscar Wilde once observed: "It is a curious fact that people are never so trivial as when they take themselves seriously." Case in point: Plaintiff Johannes T. ("Ted") Martin claims invasion of privacy and false advertising based on a television commercial. Martin, who holds the world record for most consecutive kicks (no knees) in the footbag (i.e. hacky sack) singles category and has held that record since 1988 (with the exception of a brief period of 50 days in 1997), takes umbrage at the suggestion that consuming an energy drink could enable someone to break a record-his record-that doubtless requires a great deal of athleticism and countless hours of practice. He sees no humor in what he perceives to be an effort to exploit his achievement.
But, whether Martin himself finds it humorous or not, the ad is clearly a comedic farce and in no way trades on Martin's identity. Were he to take a step back, Martin might even see that, if anything, the ad promotes the game to which he has given so much of himself (including, perhaps, his sense of humor). In any event, the amended complaint asserts no plausible cause of action and, for the reasons set forth more fully below, is dismissed with prejudice.
Defectum humoris non curat lex, indeed!
And there's lots of relevant-to-the-disposition, but otherwise entirely useless, Hacky-Sackiana in the opinion.
[Illinois law] protects the exploitation of one's identity for commercial purposes without consent. The premise of Martin's argument is that by claiming that the hacky sack record holder used 5HE to set the record, the Commercial effectively says that Martin used 5HE to set his record. Living Essentials points out that the Commercial never uses Martin's name, or likeness, or voice, but [the law's] scope extends to the unauthorized use of "any attribute of an individual."
Martin contends that "the record for Hacky Sack" is a phrase that identifies him particularly, but the phrase is far too ambiguous to do so. The language and graphic of the Commercial depict vague generalities regarding "the record for Hacky Sack" and do not clearly indicate that someone has broken the specific record that Martin set (or any other particular hacky sack record). Living Essentials points to the diverse array of hacky sack records (at least 14 different records), arguing that Martin's assertion that he holds the record is a mischaracterization. The Commercial, moreover, depicts a man kicking two footbags, not one. Whether "the record" the fictitious consumer of 5HE claims to have broken is open singles footbag consecutive (Martin's record), open singles timed footbag consecutive, footbag (consecutive eclipses), or footbag (consecutive diving butterflies) or any of the other ten footbag records listed as a Footbag Guinness World Record is not evident in the Commercial.