Antitrust Law Daily Wrap Up, ADVERTISING—D.N.J.: “B celebrity” loses false endorsement, right of publicity claims, (Jul 28, 2014)

By Greg Hammond, J.D.

Khadi Madama, who appeared in the television show Yours Truly, Yoga, has failed to prove that a senior rehab services company violated her right of publicity or that her likeness was used to falsely endorse a tai chi program for older adults. In granting summary judgment to the rehab services company, the federal district court in Trenton, New Jersey, determined that Madama willfully posed for pictures and videos, knowing that the images of her would be used in connection with the tai chi product (Madama v. Genesis Rehab Services, July 24, 2014, Cooper, M.).

Background. Genesis Rehab Services is a health care company that provides older adults in nursing homes and other facilities with rehabilitation and wellness services. Madama, a self-described “B celebrity,” has authored several books and blogs, participated in a number of speaking engagements, and appeared on various television and radio broadcast programs.

According to the court, Madama participated on Genesis’ Champion Consulting Team, and subsequently came up with the idea of Gen-Chi®, a tai chi product for seniors. She drafted the curriculum; choreographed the movements; posed for videos and photos; recorded voice-overs; and testified that she knew she was being photographed and filmed for the Gen-Chi materials. After the program was completed, Madama expressed interest in continuing her work with Genesis, but Genesis representatives disclosed that they did not have a need for Madama’s services.

Madama subsequently filed suit, alleging (1) false-endorsement under section 43(a) of the Lanham Act and (2) a violation of New Jersey’s common law right of publicity. Genesis moved for summary judgment.

False-endorsement. Under section 43(a) of the Lanham Act, Madama would have redress if her likeness was used in such a way as to deceive the public into believing that she endorsed, sponsored, or approved of Genesis’ product. Therefore, to succeed on her claim, Madama was required to prove a likelihood of consumer confusion as to the origin, approval, or endorsement of the product. The court concluded that Madama failed to establish a false-endorsement claim because she failed to prove a likelihood of confusion. Specifically, it found that there was nothing “false” about Origins’ use of Madama’s likeness, as she was associated with the Gen-Chi product; was employed by Genesis; was filmed and photographed; knew that her likeness would be used; and did not object to such use.

Right of publicity. To prevail on a right of publicity claim, Madama was required to prove: (1) she owns an enforceable right in her identity or persona; (2) Genesis used some aspect of her identity or persona in an identifiable way, and without her permission; and (3) such use caused damage to the commercial value of her persona. However, no violation of right of publicity occurred if Madama consented to the use of her likeness, and Genesis’ use was within the scope of her consent.

The court concluded that Madama failed to demonstrate a dispute of material fact on the issues of consent and likelihood of damage. Specifically, it determined that because she willingly posed for the photographs and videos, and knew that such images would be used in the tai chi program, she gave implied consent. Even in the absence of implied consent, Madama failed to show a likelihood that her persona would be damaged by the use of her image in connection with Gen-Chi, as her name was not in program materials and there was no evidence that she is recognizable to end users of the Gen-Chi program.

The case number is 12-1451 (MLC).

Attorneys: Stephanie C. Hunnell for Khadi Madama. Cristina Baragona (Lowenstein Sandler LLP) for Genesis Rehab Services.

Companies: Genesis Rehab Services

Cases: Advertising NewJerseyNews