“We’re going to shoot one Polaroid per show. I’m going to sign this before it even develops because I know that once it develops with my signature on it, it’s worth a fortune. I’ll make this a work of magic warlock art.” -Charlie Sheen

5524293116_b071ce081eEntrepreneurs are capitalizing on Charlie Sheen’s speeches, which have fascinated the American public over the last few weeks. Products bearing Sheen’s now legendary catchphrases will sell, no doubt, but can businesses legally profit from the use of Sheen’s words?

In the weeks since Sheen’s trip to rehab and subsequent rantings interviews, numerous entrepreneurs have registered trademarks for products bearing Sheen’s slogans: a video website that tracks Charlie Sheen’s appearances registered “Tiger Blood TV”; a toy manufacturer registered the “Magic Charlie Ball”; another company registered “Adonis DNA” for a line of dietary and nutritional supplements. Jimmy Buffett registered a “Tiger Blood” cocktail, consisting of vodka and energy drink, to be sold in his Margaritaville restaurants. Other registrants have trademarked: “Winning!”, “Duh! Winning!”, “Winning”, “World Wide Winning Connections”, “Friendship, Who’s Winning?”, and “Bi-Winning.”

Although Sheen could arguably dispute these trademark filings, Sheen (or his lawyers) have decided to use a different, more unusual route to stop other businesses from profiting from his antics words of wisdom.

FEA Merchandising, a subsidiary of Live Nation and the merchandise provider for Sheen’s upcoming tours, has been sending out numerous cease-and-desist letters and takedown notices to unauthorized trolls earthworms competitors. While some of these competitors may hold trademarks to the slogans, FEA is arguing that, regardless of trademark ownership, they are violating Sheen’s right of publicity.

The right of publicity is the right of a person to control the commercial use of his or her identity; the focus in a right of publicity dispute is the commercial use of an identity and the right to control that use and to be compensated monetarily for that use.

The Restatement Third of Unfair Competition states that the plaintiff must prove two elements in a common law right of publicity action:

(1) Defendant, without permission, has used some aspect of identity or persona in such a way that plaintiff is identifiable from defendant’s use; and

(2) Defendant’s use is likely to cause damage to the commercial value of that persona.

Under this test, Sheen could likely prevail in a lawsuit against these trademark registrants since they have used his identity without his permission. Many of these products are arguably “likely to cause damage to the commercial value” of Sheen’s persona because they compete with the sale of his own face-melting magic merchandise. Furthermore, Sheen could argue that some of the trademarked items, like “Tiger Blood” (energy drink mixed with vodka), damage his persona (because Sheen has entered rehab for substance abuse multiple times and, perhaps, does not wish to be associated with alcohol).

Although right of publicity actions are rare, they can be successful. For example, Johnny Carson prevailed on such a theory against a toilet manufacturer that attempted to sell portable toilets bearing the phrase, “Here’s Johnny.”

As one legal treatise summarizes, the right of publicity is the “inherent right of every human being to control the commercial use of his or her identity.” Assuming that “human being” includes warlocks, Sheen has the right to control the commercial use of his spectacular identity.

– Anne Goodwyn

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One Response to Warlocks and The Right of Publicity

  1. Kevin Lumpkin says:

    Tiger blood notwithstanding, the right of publicity is monstrously all-encompassing. If Vanna White can claim that a robot flipping things over violates her right to publicity, see White v. Samsung, 971 F.2d 1395 (9th Cir. 1992), then any celebrity can claim that just about anything even remotely related to them violates their right to publicity.

    Next up: Charlie Sheen sues tigers. Then Gary Busey sues Charlie Sheen.