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ERNEST HEMINGWAY & TRADEMARK LAW.
Term Paper ID:26173
Essay Subject:
Overview of relevant law & analysis of legalities of use of Hemingway's name, legacy & image by Key West businesses, including Sloppy Joe's International & Hemingway Festival.... More...
24 Pages / 5400 Words
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Paper Abstract:
Overview of relevant law & analysis of legalities of use of Hemingway's name, legacy & image by Key West businesses, including Sloppy Joe's International & Hemingway Festival.
Paper Introduction:
Hemingway Days In Key West Florida: Publicity Rights under Law
Background
Over one hundred years ago, Samuel D. Warren and Louis D. Brandeis wrote a law review article in favor of a right to privacy (Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193: 1890). After the New York Court of Appeals refused to recognize such right under the common law, Robertson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (1902) (unauthorized use of a young woman's photograph in advertisements for bags of flour), the New York State legislature enacted a statute in 1903 which prohibits use of a person's name, portrait or picture for advertising purposes or purpose of trade without the person's written consent (N.Y. C
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1929 marked the release of AFarewell to Arms. (1992). For example, as part of a now-dropped counter-suit, Sloppy Joe'sInternational (a Key West establishment) argued that prospective customersof its bar and restaurant services would not presume a connection betweenHemingway and the restaurant design, layout, food, etc. Their argument was essentially rootedin the ideas that (1) Hemingway is known only for his writing and (2)Hemingway is an historical figure. The refusal toregister under Section 2(a) of the Act, 15 U.S.C. 2849, 53 L. Department ofCommerce Patent and Trademark Office, 1997). Typical examples of common or ordinary wordsare:* people's names (Pete's Muffins, Smith Graphics)* geographic terms (Northern Dairy, Central Insect Control), and* descriptive terms--that is, words that attempt to literally describe theproduct or some characteristic of the product (Rapid Computers, ClarityVideo Monitors, Ice Cold Ice Cream). Supp. Hemingway may have had his own barstool and even maintained an office for writing in the back room, but there is no evidence that he had any actual proprietary or financial interest in the bar. 538, 64 N.E. (1992). [On-line]. Sanibel Island, Oak Park, Sun Valley, Michigan, and KeyWest. v. The SundayTelegraph. It is the highly romanticized version of Ernest Hemingway, as thechronicler of some of the great conflicts of the early twentieth century,the sports fisherman, and the heavy drinker, that have become legend andpublic domain. In 1928, he moved to what would remain his only true residence in theUnited States -- Key West, Florida. Patrick Hemingway has said "The Key West event isn't reallythe image we want to foster. The proposals being considered by INTA, which at this point seem tobe the more polished, treat publicity rights, which are described as"persona" rights, as trademarks and would expand the Lanham Act to protectthem. (1997, July 27). The final argument pressed by Sloppy Joe's International was thatthere was no false suggestion of a connection here because members of theHemingway family have consented to applicant's use of Hemingway's name andlikeness in connection with applicant's bar and restaurant. Under one such proposal, registration and exploitation of personarights would be required. simply because hislikeness was used on their signage. Other states such as Tennessee incorporate trademarkconcepts in their laws. Seven state statutesexplicitly cover the property and commercial value concepts of the "rightof publicity" (California Civ. Russen, 513 F. Lastly, SloppyJoe's International argued that Hemingway family members have throughimplication consented to applicant's registration of the involved mark forbar and restaurant services (U.S. The literary element is minimal and it isreally just an attempt to get tourists down there in the off season"(Langley, 1997). Presley v. stipulated that no consent to register the involvedmark can be implied by the mere attendance and participation of someHemingway family members at these events. Langley, W. 214, § 3A; Nebraska Rev. Stat., §§ 2 -2 1 -2 -211 and § 25-84 . TheRestatement (Second) of Torts § 652(c) (1977) provides that: "One whoappropriates to his own use or benefit the names or likeness of another issubject to liability to the other for invasion of his privacy." In Zacchini v. Supp. Fast facts: Trademark and servicemark. Further, Sloppy Joe's International argued that Hemingway is anhistorical figure, known for his writing, an activity unrelated to bar andrestaurant services, and prospective purchasers of such services would notpresume a connection between Hemingway and those services. Rochester Folding Box Co., 171 N.Y. The festival, to be headquartered atSundial Beach Resort, will feature an expanded two-day literary conference,golf and fishing tournaments, and a Father's Day celebration as well asart, photography, and writing competitions and workshops. 1981) [in which the Second Circuit appliedTennessee law] and Lugosi v. The latter was a fictionalized accountof the events that had taken place at the 1925 Pampalona Fiesta and waswell received in America. While recognizing, explicitly, that the right of privacy was astate law, the opinion analogized Ohio's right of publicity, as applied inthat case, with federal patent and copyright laws. Cowan, Liebowitz & Latman, P.C. The question here is whether Sloppy Joe's International hasestablished a "connection" with Hemingway which entities it to register theinvolved mark. 1994)[Court noted that George McFarland ("Spanky" of the "Little Rascals")actively protected the right to license his name.]). Hemingway Ltd.will probably crop up again. Sloppy Joe's International maintained that there is a real connectionbetween Ernest Hemingway and applicant's bar, and therefore there is no"false suggestion" of a connection between Hemingway and applicant'sservices. § 26. Russen, 513 F. Department of CommercePatent and Trademark Office, 1997; also See, e.g.: In re Sauer, 27 USPQ2d1973 [Record included Bo Jackson baseball and football cards andadvertisements for Bo Jackson figurines and toys.]; Buffett v. Departmentof Commerce Patent and Trademark Office, 1997). v.Since 1868 Crescent Corp., 314 F.Supp. It is said that Hemingway modeled the maincharacter in his novel To Have and To Have Not after Russell. For all practical purposes, a service mark is the same as a trademark--except that trademarks promote products while service marks promoteservices. Sloppy Joe's International relies on Lucien Picard Watch Corp. In general terms, the festival consisted of writingcontests, arm-wrestling contests, and a Hemingway look-alike contest. Hemingwaywas a frequent patron of Sloppy Joe's, did a great deal of his writing inthe back room of the bar; and after his death, original manuscripts andsections of several of his most famous works were discovered there. 442 (19 2)(unauthorized use of a young woman's photograph in advertisements for bagsof flour), the New York State legislature enacted a statute in 19 3 whichprohibits use of a person's name, portrait or picture for advertisingpurposes or purpose of trade without the person's written consent (N.Y.Civil Rights Law §§5 and 51). In the trademark context,"distinctive" means unique enough to reasonably serve as an identifier of aproduct in the marketplace (Elias, 1992). On the other hand, the holder must maintain afederal trademark registration by filing a declaration, during the sixthyear after issuance, that the mark is in bona fide use in commerce in theordinary course of trade and not merely to reserve a right in the mark.The holder must also renew the registration every 1 years as long as themark is still in use. Under state and federal laws, distinctivewords, phrases, logos, symbols, and slogans can qualify as trademarks orservice marks if they are used to identify and distinguish a product orservice in the marketplace. 2d 965 (1977), the Court rejected an argument thatunder First and Fourteenth Amendments to the U.S. Cir. iscorrect in that this appears to be mere folklore. Constitution, thedefendant enjoyed a constitutional privilege to film and broadcast aperformer's entire act in violation of Ohio's common-law right ofpublicity. Only Hemingway, Ltd., the ownerof a registration for the mark HEMINGWAY for services identified as"licensing others the right to use and/or exploit the name and likeness ofErnest Hemingway," has authority to license the use of the name andlikeness of Ernest Hemingway. Department of Commerce Patent and Trademark Office, 1997). § 47-25-11 1et seq.; Texas Rev. Civ. The claims of co-ownership listed by the applicant seem to refer more to folklore based on the amount of time Hemingway spent in the bar than to any actual ownership interest (U.S. MacMillan Inc., 894 F.2d579, 13 USPQ2d 1799 (2d Cir. Key West festival called off in rift withHemingway heirs; charges of greed fly as author's sons threaten suit. 329, 165 USPQ 459, 461 (S.D.N.Y.197 ) [Use of the mark Da Vinci on jewelry and leather giftware "isscarcely likely to mislead" a significant number of purchasers intobelieving that Leonardo da Vinci was in any way responsible for the designor production of the goods; thus no false suggestion of a connection withLeonardo da Vinci]. In 1926, Hemingway published The Torrents of Spring and The Sun alsoRises (entitled Fiesta in Britain). Universal Pictures Co., 255 A.D.459, 7 N.Y.S.2d 845 (1st Dep't 1938); Marcraft Recreation Corp., v. (2) A natural person shall be deemed to be "readily identifiable" from an image when one who views the image with the naked eye and can reasonably determine that it is such a natural person depicted in the image (Lewis, 1997). (1998). Trademarks said to be inherently distinctive typically consist of:* unique logos or symbols* made-up words ("coined marks"), such as Exxon or Kodak* words that invoke imaginative images in the context of their usage("fanciful marks"), such as Double Rainbow ice cream* words that are surprising or unexpected in the context of their usage("arbitrary marks"), such as Time Magazine or Diesel for a bookstore, and* words that cleverly connote qualities about the product or service("suggestive or evocative marks"), such as Slenderella diet food products. That substantially remains the law in NewYork State to this day. Titles,character names or other distinctive features of movies, television andradio programs can also serve as trademarks or service marks when used topromote a service or product. 1339 (D.N.J.1981). The festival was held andsponsored by the city of Key West. Most states recognize, in some form, most or all of the four rightsof privacy, the fourth of which is the right to be free from theunauthorized use of one's identity for the benefit of another person (seeProsser, Privacy, 48 Cal. Department of Commerce Patent and Trademark Office, 1997). 1133 Avenue of theAmericas New York, NY 1 36-6799. In contrast, a right that is consideredessentially as a property right usually will be freely transferable anddescendible and may require registration and evidence of exploitation bythe holder or assignee (Celedonia, 1998).Trademark and ServiceMarks A trademark is a distinctive word, phrase, logo or other graphicsymbol that is used to distinguish a manufacturer's or merchant's productsfrom anyone else's. Besides the fact that these decisions are no longer controlling, asboth Tennessee and California have enacted statutes recognizing a postmortem right of publicity, the Trademark Act prohibition under Section2(a) extends to "persons, living or dead." Section 2(a) false suggestionof a connection refusal is not improper here simply because it has beenasserted with respect to a deceased individual, Ernest Hemingway. The mark (or part of it) must be shownto be the same as or a close approximation of the person's previously usedname or identity, and it must be established that the mark would berecognized as such (i.e., the mark points uniquely to that person).Further, it must be shown that the person in question is not connected withthe goods or services of the applicant, and the person's name or identitymust be of sufficient fame that when it is used as part or all of the markon applicant's goods/services, a connection with that person would bepresumed by someone considering purchasing the goods or services. Brandeiswrote a law review article in favor of a right to privacy (Warren andBrandeis, The Right to Privacy, 4 Harv. In University of Notre Dame du Lac v. §1 52 (a), is based onthe contention that the mark falsely suggests a connection with authorErnest Hemingway (U.S. §8. (1997). Warren and Louis D. 598, § 3.1;Oklahoma Stat., Title 21, § 1448, § 1449; Tennessee Code Ann. (jeffryp@swfla.infi.net).Hemingway Days Description: Sanibel Island The International Hemingway Days festival being held annually onSanibel Island is really a footnote to the more commercial festival beingheld in Key west, Florida. 1339 (D.N.J. 1983), the reviewing courtsaid that the "false suggestion of a connection" portion of Section 2(a)evolved out of, and embraced, the concepts of the rights of privacy andpublicity. All are now licensed by Hemingway Ltd. 1-4 and § 18.2-216.1; Wisconsin Stat. The International Hemingway Festival of Sanibel will be held annuallyover the Father's Day weekend. The licensing of the names and/or likenesses of well known personsfor use on various goods and services is a common practice. The Hemingway brothers objected to the image the festival portrayed,replete with a boozy irreverent tone, look-alike contest, and bad shortstory writing. Department of Commerce Patent andTrademark Office, 1997).Precedent In Pirone, the daughters of Babe Ruth, owners of a registration forthe word mark BABE RUTH for playing cards, writing papers and envelopes,and their licensees, objected to the use of three photographs of Ruth in abaseball calendar published by MacMillan. v. Indeed, thisis reflected in Sloppy Joe International. 2 et seq.) Eight states protect theright of publicity under their "privacy" statutes (Florida Stat, Title 31,§ 54 . The right of publicity laws of states such as California reflectcopyright principles. made an issue of the way in which the festival was beingrun. If the idea of Hemingway festivals had not become popularized (5different locations), and his progeny had not sought some kind oflegitimate control over the image of Ernest Hemingway the artist, perhapsno dispute would have arisen. Elias, K., Renauer, A., & Leonard, R. 8; Massachusetts G.L.C. The suit filed by Hemingway Ltd. Names for businesses are commonly called "trade names." A business'strade name is the name it uses on its stock certificates, bank accounts,invoices and letterhead. They would be renewable for ten-year intervals,indefinitely, and would be freely transferable and descendible (Lewis,1997). Rights Law § 5 -51; Rhode Island Gen.Laws § 9-1-28; Utah Code Ann. suit), was quoted as saying: "You can't claim exclusive rights to abrand name years - decades in this instance- after it's established"(Langley, 1997). registrations which cover thelicensing of Hemingway's name and/or likeness (with no limitation as to thegoods/services which may be licensed there under), bar and restaurantservices, and clothing. David Horan, thelawyer representing Hemingway House (another party named in the HemingwayLtd. In the Wells' booklet and another of the excerpted materials,Hemingway is quoted as saying: "I used to be co-owner of Sloppy Joe's,silent partner they call it. Although the legislative history of Section 2(a) offers nospecific guidance on this issue, Hemingway Ltd. We had gambling in the back and that's wherethe real money is." Sloppy Joe's International argued that the refusal toregister under Section 2(a) is improper because the "connection betweenHemingway and Sloppy Joe's is not falsely suggested." The attorney for Hemingway Ltd. Recent development in the right of publicityin the United States. The essence of the court's ruling on these claims is not thatphotographs or pictures of persons, per se, are not trademarks, but thatthe Ruth photographs, as used in this baseball calendar, did not serve asource-indicating function (Presley v. She wasthe first to point Hemingway in the direction of the 'simple declarativesentence,' an attemptto make words communicate concretely and efficiently (Hemingway &Fitzgerald, 1997). When used to identify a business in this way--asan entity for non-marketing purposes--the business name is subject to someprotection under state and local corporate and fictitious business nameregistration laws, but it is not considered a trademark (thus is notentitled to protection as such). With the success of this novel, Hemingway's persona, as agreat American writer, aka Papa Hemingway, was established (Hemingway &Fitzgerald, 1997). Inaddition, Hemingway memorabilia was being sold. 1981).Current Law A right of publicity is the right of each person to control thecommercial use of his or her identity and persona, such as name, voice,signature, photograph and likeness. The image, in use by Sloppy Joe'sInternational, one of the establishments supposedly frequented by ErnestHemingway, was filed by Sloppy Joe's International, Inc. (1997, May 11). may have occurred because of the settlement of a case pertaining tothe use of Ernest Hemingway's image. The disagreement between Key West and New York's Hemingway,Ltd. has no affect on the SanibelIsland celebration whatsoever. In view thereof, and because the public isaccustomed to seeing the names and likenesses of well known individuals ondiverse items, it would be reasonable for consumers to believe that bar andrestaurant services and licensing services for the name and/or likeness ofa well known person and clothing emanate from the same source. Scripps-Howard Broadcasting Co., 433 U.S. Rather, a commercial connection, such as an ownership interest orcommercial endorsement or sponsorship of applicant's services, would benecessary to entitle applicant to register the involved mark. Some examples: Ford cars and trucks, Kellogg'sCornflakes, IBM computers, Microsoft software. acting as agents for the Hemingway brothers,wrote the organizers of the Key West Hemingway Days festival, assertingthat the festival violated the family's trademark rights to the name andlikeness of the writer. She had been working to renew American literarywriting by removing useless gothic, Victorian, and archaic forms. 1995). Great-granddaughter Lorian Hemingway, a novelist in her own right,has consented to lend her name to that portion of the revamped Hemingwaydays celebrations licensed by Hemingway, Ltd. (1) The term "image" includes, but is not limited to, a picture, portrait, likeness, photograph or photographic reproduction, still or moving, or any videotape or live television transmission or audio/visual representation or any analog or digital representation or transmission or any other method of crating or reproducing a likeness, now know or hereafter created, such that the natural person is readily identifiable. 562, 97 S.Ct. Rev. 193: 189 ). The federal law provides that non-use of a mark for3 consecutive years is ordinarily considered proof of an intention toabandon it, opening the way for someone else to claim exclusive rights inthe mark (Borchard, 1998). Gourmet Food Imports Co.,Inc., 7 3 F.2d 1372, 217 USPQ 5 5 (Fed. The thematic change instituted by HemingwayLtd. L. 199 ), argued that not every picture orphotograph of an individual is an invasion of the right of publicity and aviolation of Section 2(a), and that the Hemingway portrait is not the kindof representation which infringes upon the Hemingway family's right ofpublicity (U.S. uses Nolo as a service mark for its online people's lawservices. Towards the end of gaining control, In January of 1997, FashionLicensing of America Inc. (1998) A trademark is not a copyright or a patent.Cowan, Liebowitz & Latman, P.C. Even though Hemingway was atalented writer and captured for many the angst and suffering of the "lostgeneration," but his life was quite painful and full of turmoil. Ernest Hemingway represented the penultimate accomplishment ofthe American dream; recognition for individual effort, uncompromisingpersonal ethics, and legendary stature. Hence, he is not "historical" in the way Leonardo da Vinciis "historical." It is therefore logical to assume that, when the portraitof Hemingway is used as part of the mark for bar and restaurant services,prospective purchasers would in fact presume a connection between Hemingwayand Sloppy Joe's International's services.Hemingway Days Description: Key West The original Hemingway Festival had been held for a period of 1 dayseach July in Key West, Florida since 1981. References Dueling festivals for Hemingway/Papa parties: fun in Key west,sanitized in Sanibel. § 391.17 ; Nevada Rev. Stat., ch. (1997, July 24). In re Sloppy Joe's International, Inc.June 12, 1997.[pic](Source: http://www.oblon.com/Uspto/Ttab/Gifs/74-34527 a.gif) Nolo Press, BerkelyCalifornia. Elias, S. Hemingway, who died just under 4 years ago, is a figure -- andcelebrity -- of our own times; many people who knew him are undoubtedlystill living. A mark that has become protectible throughexposure or long use is said to have acquired a "secondary meaning."Examples of otherwise common marks that have acquired a secondary meaningand are now considered to be distinctive include: Sears (departmentstores), Ben and Jerry's (ice cream) and Park'n Fly (airport parkingservices)(Elias, Renauer, & Leonard, 1992).Ernest Hemingway's Legacy Ernest Hemingway came to represent a part of American mythos, atalented individual who finally succeeds because of his unwillingness tocompromise. Miller, 29 USPQ2d 1586 (3d Cir. "Ding" Darling National Wildlife Refuge,CROW (Care and Rehabilitation of Wildlife), the American DiabetesAssociation and the State of Florida's Bay Pines Medical Center in St.Petersburg, Florida (a veterans hospital) (1998 Sanibel Island..., 1998).Establishment of Brand Names, Trademarks, and Licensing The decision by Key West not to fight it out in court with HemingwayLtd. The copyright laws protect original works of expression, butspecifically do not protect names, titles, or short phrases. Available:http://www.webb.org/webb/Dept/APLang/Hussain/aplang.htm. In this context, the terms "right ofpersona," "right of personality" and "right of publicity" are usedinterchangeably. Hemingway Days In Key West Florida: Publicity Rights under LawBackground Over one hundred years ago, Samuel D. The festival will include family-oriented activities, including artsand crafts, ecological, and musical events geared toward children.Proceeds from the event will benefit a number of charitable and non-profitorganizations, including the J.N. In the present case, Sloppy Joe's International uses and seeks toregister the Hemingway portrait as part of its mark for bar and restaurantservices, thereby explicitly claiming the portrait functions to indicatesource. In terms of communication within the law these terms are increasingdifficult to argue with. It can also be a shape, letters, numbers, a sound, a smell, a coloror any other non-functional but distinctive aspect of a product or servicethat tends to promote and distinguish it in the marketplace. Specificity is important,considering that cases like Sloppy Joe's International v. Some early decisions dealt with unauthorized commercial use ofanother's identity as a form of misappropriation or unfair competition.See, e.g., Madison Square Garden Corp. This is wheretrademark protection comes in. §32-13; Kentucky Rev. Stat. In Paris, where Hemingway spent part of his life, Gertrude Stein tookhim under her wing. 1; New York Civ. However similar cases pursued by the FederalTrade Commission have shown that family members can take control. The test for determining the propriety of a refusal to register basedon Section 2(a) has four elements. 1133 Avenue of the Americas New York, NY1 36-6799. The family demanded control over the festival and1 percent of the gross income retroactive to five years (Navarro, 1997). What is at issue is the right to control whatevercommercial or "publicity" value might attach to or be derived from aperson's identity, personality or persona (Celedonia, 1998). The trademark laws protect the productor service name and any slogans used in the advertising. It might seem that common sense would have toldthe public officials of Key West that they could not tread on someoneelse's reputation forever. Some familiar service marks: McDonald's (fast food service),Kinko's (photocopying service), ACLU (legal service), Blockbusters (videorental service), CBS's stylized eye in a circle (television networkservice), the Olympic Games' multicolored interlocking circles(international sporting event). For small businesses. (1997). By contrast, trademarks consisting of common or ordinary words arenot considered to be inherently distinctive and receive less protectionunder federal or state laws. Florida is one of the many states that employcommon-law and statutory sources for their copyright and trademark laws.Generally speaking, rights that are largely privacy-based will be neithertransferable, nor descendible. Personality, persona, and publicity rights.Seattle, Washington: Hendricks & Lewis Nararro, M. J.C. Rev. 383, 196 ). L. Department of Commerce Patent and Trademark Office,1997). Although trade names by themselves are considered trademarks,they may be protected under federal and state unfair competition laws if acompeting use is likely to lead to customer confusion (Elias, Renauer, &Leonard, 1992). There are currently five locations with Ernest Hemingway festivals inthe United States. Department ofCommerce Patent and Trademark Office, 1997). Code § 3344 and § 99 ; Indiana Code Ann. However, as Hemingway Ltd. Available:http://www.ssrc.com/spec_events/hemingway.html U.S. Nolo Press, Berkely California. Hemingway Ltd. A proposed amendment to Section 45 of the Lanham Act construes anddefines "persona" as follows: Persona - The term "persona" means the following or an imitation thereof: the legal name of any natural person or any other name by which a natural person is known to any material segment of the general public; signature; voice; image; distinctive characteristics or appurtences by which a natural person is known to any material segment of the general public; or a character portrayed by the natural person on stage, in film or television or in live performances or other entertainment media, provided that the character has been created by the natural person and has become so associated with the natural person as to be indistinguishable from the natural person as to be indistinguishable from the natural person's public image. In 1997 the three sons of Ernest Hemingway, John, Patrick, andGregory, began legal action to gain control over Key West's growingHemingway industry. § 895.5 ). Star Tribune, Borchard, W.M. Sloppy Joe's International argued that,because Hemingway is an historical figure, customers are not likely toconnect Hemingway bar and restaurant services. (1992). In support of its position, Sloppy Joe's International submitted thedeclaration of its president, Michael Halpern; a booklet entitled "SloppyJoe's Bar The First Fifty Years," by Sharon Wells, a Key West, Floridahistorian; and copies of excerpts from books, brochures, and newspaperswhich chronicle Hemingway's years in Key West. According to thesematerials, Hemingway and Joe Russell, the original owner of Sloppy Joe'sbar, were close friends. Sloppy Joe'sInternational implies this consent from the attendance and participation ofHemingway family members at celebrations and festivals sponsored byapplicant which honor Hemingway's life and work (U.S. As mentioned, it is possible for ordinary marks to become distinctivebecause they have developed great public recognition through long use andexposure in the marketplace. Lewis, O.Y. Plaintiffs alleged federal andcommon law trademark infringement and unfair competition, infringement ofthe common law right of publicity, and violation of the New York CivilRights Law. Key Westagreed to drop their counter-suit and become licensed by Hemingway Ltd. Sloppy Joe'sInternational offered no documentary evidence, e.g., a deed or contract, tosupport its contention that Hemingway was indeed the co-owner of the bar.Thus, Sloppy Joe's International has not established a connection withHemingway which entitles it to register the involved mark. Stat. [On-line}. The annualized festival held in Key west Florida was indeed calledoff for 1997. § 45-3-1 - § 45-3-6; Virginia Code Ann. The use of the Hemingway portrait is, therefore, not analogous toMcMillan's use of Ruth photographs in a baseball calendar (U.S. After the NewYork Court of Appeals refused to recognize such right under the common law,Robertson v. Pro Arts, Inc., 652 F.2d278, 211 USPQ 1 (2d Cir. Papa's boys get tough. Registration of the image, as part of Sloppy Joe's International wasrefused under Sections 2(a) and 2(d) of the Trademark Act. A trademark or service mark can be more than just a brand name orlogo. Violation of this right, which was adopted by the Restatement(Second) of Torts, is frequently called the tort of "appropriation." Thistort is generally thought to be the principal antecedent of the right ofpublicity (see McCarthy, The Rights of Publicity and Privacy, §§ 1.6-1.7:Rev. The copyrightlaws protect any additional literal expression that the ad contains (Elias,Renauer, & Leonard, 1992). The trademark laws are often used in conjunction with the copyrightlaws to protect advertising copy. In essence the battle is over whether executive rightsto a brand name in use for decades, can be claimed as exclusive rights bythe family members (Langley, 1997). acknowledged that "few cases, if any,have dealt with the issue of how much of a connection is required toovercome a Section 2(a) refusal." It is Hemingway Ltd's position, however,that a financial or ownership interest in the goods and/or services isrequired. Trademark rights continue indefinitely as long as the holder neitherabandons the mark nor permits it to lose its trademark significance bybecoming a generic term. Supp. correctlyobserved, the names and likenesses of well known persons frequently arelicensed for use on various goods and services (U.S. Nolo Press.Berkely, California. If, however, a business name is also used to identify a product orservice produced by the business, it may qualify for trademark protectionif it is distinctive enough. Department of Commerce Patent andTrademark Office, 1997). Sloppy Joe's International argued that, because the right ofpublicity terminates upon the death of the individual, the Section 2(a)false suggestion of a connection ground may not be asserted with respect toErnest Hemingway, citing Factors Etc., Inc. The question that must always be asked is, ifthe situations was reversed, would you mind if someone made profit on yourhard work? The facts here are distinguishable (U.S. 1 81 (S.D.N.Y. Celedonia, B.H. Hemingway Ltd. The current mayor of Key West was quoted as saying, "Ernest Hemingwaybelongs to everyone, not to a company balance sheet." Clearly, in terms ofusing the likeness or image of Ernest Hemingway, he was wrong (Langley,1997).Conclusion Both the American Bar Association and the International TrademarkAssociation ("INTA") are considering proposals to address "publicity" or"persona" rights through federal legislation. Under these circumstances, customers familiar with registrant'sHEMINGWAY and HEMINGWAY'S marks as used in connection with licensingservices, bar and restaurant services, and clothing, upon encounteringSloppy Joe's International mark consisting of SLOPPY JOE'S and a prominentportrait of Ernest Hemingway, for bar and restaurant services, would belikely to believe, mistakenly, that the goods and services originate withor are sponsored by the same source (U.S. 13 Fast facts aboutcopyrights. As a general rule, trademark law confers the most legal protection tonames, logos and other marketing devices that are distinctive--that is,memorable because they are creative or out of the ordinary (inherentlydistinctive), or because over time they have become well known to thepublic. Elias, S. Inaddition, the state of Florida has a Right to Publicity law which statesthat profit cannot be made from someone's name or likeness unless thepermission of the family is first obtained (jeffryp@swfla.infi.net). however, has carried over to this festival (jeffryp@swfla.infi.net). Thus, the name and/or likeness of a well known writer may well be"extended" for use on goods and services unrelated to writing.Additionally, as evidenced by the materials submitted by Sloppy Joe'sInternational, Hemingway's frequenting Sloppy Joe's bar and his "harddrinking" are well documented. Ostensibly, Hilary Hemingway, the author'sniece, helped institute the festival as a means of re-establishingmeaningfulness intrinsic to the Hemingway name (Dueling festivals...,1997). Subsequently, Hemingway would lend hisname to commercial ventures in different parts of the United States, but henever actually called any one place his home. Key West never appears to have obtainedany official permission from the heirs of the Hemingway estate, to carry ontheir business. Finally, the distinctive packaging of aproduct is protected under the federal trademark statute (the Lanham Act)as trade dress, although trade dress cannot be placed on the federaltrademark register (Elias, 1992). Department of Commerce Patent and Trademark Office.Trademark Trial and Appeal Board. Hemingway, & Fitzgerald, . Sloppy Joe's International, citing Pirone v. was settled in November of 1997 in Miami Federal Court. FrancisDevlin Co., 5 6 F. pointed out thatHemingway's friendship with the original owner of Sloppy Joe's bar, hisfrequenting the bar and his use of the back room as an office is not thekind of "connection" contemplated by Section 2(a). It was instantly accepted as a great work by critics andthe public. Ed. In this way, some legitimatedegree of control over the short-story competition has been established. argued that, ...spending a great deal of time in one's favorite bar is not a legally sufficient 'connection' to allow an establishment to secure trademark rights in its famous patron's likeness. Chi-Chi's,supra [Record included evidence of licensing agreements held by JimmyBuffett for the name "J.B.'s MARGARITAVILLE" for a restaurant, and for thesale of clothing.]; and McFarland v. Festivals and celebrations that originally billedthemselves as 'Hemingway Days' or annual celebrations of some aspect ofErnest Hemingway's lifestyle, all built on this public persona.Accordingly, nothing legitimate was ever established by the city of KeyWest, insofar as rights, franchising, or trademark negotiations untilHemingway Ltd. For instance, Apple Computer Corporation usesthe trade name Apple as a trademark on its line of computer products, andNolo Press, Inc. Universal Pictures, 2 5 USPQ 1 9 (Cal.1979). 1981)1998 Sanibel Island Hemingway Festival. As toHemingway's purported claim of co-ownership of the bar, Hemingway Ltd.
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