Discussion

Mr. Cochran claims that Southern Foods appropriated his name and likeness even though it only used his first name and a look-alike in its ad campaign. Using look-alikes can constitute appropriation if the context does not make it obvious that the person is a look-alike. The ads published by Southern do not make it obvious that the person in the ad is only a Leslie look-alike. Mr. Cochran will be able to establish a prima facie case against Southern for appropriation. Texas recognizes appropriation of name or likeness as an actionable offense. Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719, 722 (Tex. App.Eastland 1975, writ refd n.r.e.). Courts use a three-part test to determine if someones name or likeness has been appropriated or exploited illegally. Matthews v. Wozencraft, 15 F.3d 432, 436 (5th Cir. 1994). First, the defendant must have appropriated the plaintiffs name or likeness for its value and not for a newsworthy or incidental purpose. Id. Second, the plaintiff must be identifiable in the communication. Id. Finally, the defendant must have gained some advantage or benefit from the appropriation. Id. To satisfy the first part of the test, a plaintiff must show that the defendant appropriated the name or likeness for its value. The name itself isnt protected, only the value associated with it is. Express One Intl v. Steinbeck, 53 S.W.3d 895, 900 (Tex. App.Dallas 2001, no pet.) (former employee used ExpressONE for a screen name). The court in Express One held that the defendants use of the company name was not for the value of that name. Id. The evidence presented only implied that the defendant was using the name to impugn the companys reputation not for its commercial or reputational value. Id. No appropriation was found. Id. There is a specific difference between incidental use and appropriation for the commercial value of the name or likeness. National Bank of Commerce v. Shaklee Corp., 503 F. Supp. 533, 540 (W.D. Tex. 1980). An advertising firm offered a promotional deal to Shacklee on books featuring housekeeping tips from a successful columnist named Heloise. Id. at 536. Shacklee took the offer but also included her name in an ad campaign promoting their products in association with her name. Id. at 537. The court held that Shacklee extended beyond its right to use the name Heloise when the ads did more than just identify the book
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they were promoting. Id. At 540. The court found appropriation of the name for its commercial value. Id. at 540. To satisfy the second part of the appropriation test, the plaintiff must show that he is identifiable in the name or image that is appropriated. The public must be able to identify the individual whose name or likeness is used. Faloona v. Hustler magazine, Inc., 607 F. Supp. 1341, 1360 (N.D. Tex. 1985) (publication of childrens photos in a magazine didnt constitute appropriation because there were no captions identifying the subjects). An advertisement that makes reference to a person by using a look-alike isnt necessarily his likeness as a matter of law. Allen v. National Video, Inc., 610 F. Supp. 612, 624 (S.D.N.Y. 1985). While this federal court was applying New York law, there is a strong argument that the facts of the case are similar enough and the principles of privacy law are similar enough to persuade Texas courts toward a similar decision. The Allen court faced the difficult task of distinguishing the difference between a convincing Jacqueline Onassis lookalike ad in a different case and National Videos arguably dissimilar Woody Allen look-alike ad. Id. at 621-624. The Allen court first analyzed the Onassis case that held the advertisement violated Ms. Onassis right to privacy, because the overall impression made viewers think she appeared in the ad herself. Id. at 623. The court proceeded to identify features of the Allen look-alike that might raise a reasonable question of fact as to whether the ad represents Allens likeness as a matter of law or if reasonable minds could disagree. Id. at 624. The court pointed out physical features of the look-alike that would lead a viewer to believe the ad is a photo of a look-alike. Id. It also mentioned that the ad lacked the context that made the Onassis look-alike so convincing. Id. The court was concluded that a reasonable person could recognize the man in the ad as an Allen look-alike. Id. The final part of the test of appropriation is whether there was a benefit to the defendant in appropriating the plaintiffs likeness or image. The plaintiff does not need to show the defendant profited from the appropriation. Henley v. Dillard Dept. Stores, 46 F. Supp. 2d 587, 596 (N.D. Tex. 1999) (department store appropriated musicians name in t-shirt ad). Dillards failed to persuade the court to adopt a narrower definition of benefit that is limited to monetary gain. Id. at 597. The court held that the effectiveness of the appropriation
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isnt relevant. Id. It was a sufficient benefit that the ad drew peoples attention and made it more interesting. Id. at 596. In order for Mr. Cochran to prevail in an action against Southern for appropriation of likeness or name, he must convince the court that the appropriation met the three requirements set out in Matthews. First. Mr. Cochran must prove that Southern appropriated his name and likeness for its value and not for incidental purposes. Applying the Express One holding, the name Leslie and the image of a mans legs in a thong and high heels arent protected in and of themselves, only the value associated with them. Mr. Cochran could very reasonably prove that his iconic dress combined with the name Leslie has value because of the reputation generated around them. The Shacklee decision provides a clear distinction between incidental use of a likeness or name and appropriation for its commercial value. Southern has no argument for incidental use of Mr. Cochrans name and likeness, because there would be no other reason in using such a picture and name than for the value it has in its reputation among the people of Austin. There isnt any evidence that Southerns motive in using Mr. Cochrans name and likeness is to raise awareness of the homeless in Austin or other such cause. The evidence points to the ads exclusively promoting the restaurant and using Mr. Cochrans name and likeness for its value. Mr. Cochran would then have to satisfy the second element of appropriation by convincing the court that his likeness and name in the advertisements are identifiable specifically to him. This is the most arguable point in the case because only his first name was used and the person in the photo was not Mr. Cochran himself. The first reason this point is so arguable is because the court must find that the public can identify the name or likeness appropriated. If the ads only contained the image of a man in high heels and a thong, the court would follow Faloona in holding that Mr. Cochran is not identifiable in the photo. Mr. Cochran is arguably not the only conceivable male in Austin to wear high heels and a thong. The same would be true if the ads only used the name Leslie. Even more people in Austin have the name Leslie. Therefore, neither the image nor the name alone would be sufficient to convince a court that Mr Cochran is identifiable in the ads. However, the ad contains both Mr. Cochrans well known first name and iconic apparel. The
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Austin people can most likely only identify one cross-dressing male named Leslie if they could identify anyone at all who meets those criteria. The other factor that makes the identifiability element so arguable is that the image is a look-alike of Mr. Cochran. Since this issue hasnt been raised in Texas, the court will likely look to outside sources such as the Allen case to determine how to apply the law of appropriation to Mr. Cochrans case. Mr. Cochran would have a very strong argument that the image in Southerns ads gives the overall impression that Leslie himself appeared in the photo. Contributing factors to that impression include the style of clothing as well as the name Leslie. While the Allen court identified features of the photo that could lead the public to conclude the person was a look-alike, Mr. Cochran would make a strong argument that the court should view Southerns ads more like those found in the Onasis case. If the court did find that Mr. Cochrans case is more similar to Onasis, they would hold that Mr. Cochran is identifiable in the ads. The final element Mr. Cochran would have to prove is that Southern benefited from using his name and likeness in the ads. Mr. Cochran will likely present the argument that Southern benefited from using his likeness and image because it drew more attention to the ad and made it more memorable to customers. The court will likely accept that argument based on the decision in Henley. In following that holding, the court is also likely to reject any argument from Southern that it made no profit from the ads. Mr. Cochran has a prima facie case against Southern for appropriating his name and likeness. There is little argument against his case as there is evidence that satisfies the threepart test for appropriation.