Antitrust Law Daily Wrap Up, ADVERTISING—S.D.N.Y.: Musician’s image, likeness, voice did not explicitly mislead consumers, (Dec 16, 2014)

By Greg Hammond, J.D.

A rhythm and blues musician failed to adequately allege that a television show’s use of his image, likeness, and voice explicitly misled consumers, in violation of the Lanham Act, the federal district court in New York has decided. The musician’s Lanham Act and Illinois deceptive business practices claims were therefore dismissed (Cummings v. Soul Train Holdings LLC, December 12, 2014, Schofield, L.).

Jeremiah Cummings is a musician who was previously a member of the rhythm and blues music group, Harold Melvin and the Blue Notes. While in the music group, Cummings appeared and performed on multiple episodes of the nationally televised show, “The Soul Train.” He did not receive any financial compensation for his appearances, and was not asked to sign any release or grant of rights for future use. Nevertheless, Soul Train used the Blue Notes performances in (1) DVD compilations and (2) televised advertisements and Internet videos marketing those DVDs. Cummings filed suit, alleging—in part—violation of the Lanham Act, and deceptive business practices under the Illinois Consumer Fraud and Deceptive Trade Practices Act. Soul Train moved to dismiss.

Cummings alleged that Soul Train violated Section 43(a) of the Lanham Act by using his image, likeness, and voice in the DVD sets and promotional materials, thereby creating the false impression that he approved, sponsored or was otherwise associated with Soul Train’s advertising and DVD sets. However, the court found that the DVD sets were artistic works, and that Cummings failed to allege facts that could possibly show that consumers were likely to be confused about the source or ownership of those works due to his depiction in the DVDs. Consequently, the Lanham claim was dismissed.

The court also dismissed the deceptive business practices claim, noting that Illinois courts apply the same analysis as Lanham Act claims under the Illinois Consumer Fraud and Deceptive Business Practices Act.

The case number is 14 Civ. 36 (LGS).

Attorneys: Deanna L. Baxam (Baxam Law Group, LLC) for Jeremiah Cummings. Michael Elliot Salzman (Hughes Hubbard & Reed LLP) for Soul Train Holdings, LLC.

Companies: Soul Train Holdings, LLC

Cases: Advertising StateUnfairTradePractices NewYorkNews