Good Publicity? Perhaps. A Right of Publicity? Not Likely.

Rights of publicity cases tend to be interesting for obvious reasons: the cases involve famous people, the doctrine is evolving and the rights vary from state to state.  And in cases involving estates, the factual wrinkles can be fascinating, such as in the case involving the Einstein estate, which we discussed a few months ago.

But a recent case filed concerning the movie Secretariat holds no such allure.

The New York Statute is plain – it is unlawful to use a person’s name, portrait, picture or voice for advertising purposes or for the purposes of trade without first receiving his/her written consent. The New York law has been limited to living people only—the right of publicity does not survive death.

According to a complaint filed by Buena Vista Home Entertainment and Walt Disney, the estate of horse-racing announcer Charles Anderson has asserted rights of publicity claims relating to the film Secretariat.  The complaint also explains that although Anderson’s voice was not used in the film, Anderson’s estate—which is organized under the laws of New York—asserts that Secretariat included depictions of races originally called by Anderson, and that the DVD extra contains original footage of races originally called by Anderson. 

Mr. Anderson died in 1979.  His voice is absent from the film.  It is unclear what rights Mr. Anderson’s Estate could claim—and certainly claims under New York Rights of Publicity law seem foreclosed.  Unless the Estate can claim additional rights, or show a reason that New York law does not apply, this is not a case that should last long.