The press release may be one of the more ephemeral forms of communication, destined - at best - to be rewritten by others. Thousands of them are distributed electronically every day, only to rapidly disappear into the desktop trash icon. Those who write them aren't celebrated with awards, nor is their work collected in anthologies.
But on May 17, 2006, Mark Siegel, then a national PR writer for Cingular Wireless, issued a press release with legs. It was 755 words long and announced - in the wake of Hurricanes Katrina, Wilma, and Rita - that Cingular had expanded its emergency preparedness program for the coming storm season.
"At the heart of this multifaceted program are two new mobile command centers that can be brought into an affected area quickly, providing full communications capabilities as well as working and sleeping quarters for Cingular employees," Siegel wrote. The command centers were named "MACH," for mobile access command headquarters.
In the fifth paragraph, Siegel tried to add some color with a quote attributed to Ralph de la Vega, Cingular's chief operating officer at the time. "Nearly 60 years ago, the legendary test pilot Chuck Yeager broke the sound barrier and achieved Mach 1. Today, Cingular is breaking another kind of barrier with our MACH 1 and MACH 2 mobile command centers, which will enable us to respond rapidly to hurricanes and minimize their impact on our customers."
No photograph of Yeager was attached to the release, nor did it refer to him in any other way. It did not offer for sale any Cingular product or service. Nothing about it would start the pulse racing. Yet Siegel's press release has turned out to be quite singular, if only because of that quote. In fact, the release may end up being used to shatter the limits of right-of-publicity law.
In November 2007, retired Air Force Major General Charles E. "Chuck" Yeager sued Cingular Wireless - by then merged into AT&T - for allegedly violating his common law right to privacy and statutory right of publicity by using his name without permission. The complaint further charged that the company ran afoul of the federal Lanham Act (15 U.S.C. § 1125(a)) by using Yeager's name as a false endorsement of Cingular's products and services, and engaged in unjust enrichment (Yeager v. Cingular Wireless LLC,
No. 07-2517 (E.D. Cal., filed Nov. 21, 2007).)
California's right-of-publicity statute - one of the broadest in the nation - bars any unauthorized use of "another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services." (Cal. Civ. Code § 3344.)
The Cingular suit marked the first round of an anti-publicity barrage by Yeager, now an 87-year-old resident of Penn Valley, in the California Gold Country. Less than two years later, he sued computer chip maker Advanced Micro Devices in state court over an advertising program that compared the speed of its new microprocessor to his breaking of the sound barrier, thereby creating "a subliminal suggestion of endorsement." (Yeager v. Advanced Micro Devices, Inc.,
No. 109CV151913 (Santa Clara Super. Ct., filed Sept. 10, 2009).
And before the year was out, Yeager had accused Virgin America of unjustly trading on his name by promoting an in-flight wireless system with the online announcement that, "Not unlike Buzz Aldrin or Chuck Yeager, you have the opportunity to be a part of a monumental moment in air travel. The communication highway now has wings with in-flight Wi-Fi at every seat." (Yeager v. Virgin America Inc.,
No. 09-495611 (S.F. Super. Ct., filed Dec. 29, 2009).)
In the initial case, AT&T defense attorneys filed for summary judgment, arguing that the Cingular press release was protected by the First Amendment, and that the mention of Yeager's name was "so fleeting and inconsequential that it is protected by the incidental use doctrine." In effect, they accused Yeager of trying to claim monopoly control of a historic achievement that was the work of many engineers, scientists, and pilots, and is therefore part of the public domain.
Andrew W. Stroud, AT&T's lead counsel and a partner at Mennemeier, Glassman & Stroud in Sacramento, wrote in one brief, "Though Plaintiff was and is a legendary test pilot, he cannot monetize his achievements by requiring parties to pay him money any time his name is mentioned. Allowing Plaintiff to do so would stretch both the right of publicity and trademark law well beyond their lawful bounds."
But Charles J. Harder, Yeager's attorney and a partner at Wolf, Rifkin, Shapiro, Schulman & Rabkin in Los Angeles, insists his client's name is not fair game for product promoters. "If you're a historic figure, does that mean you have no right to your name or image? Absolutely not," Harder says.
Last December, Yeager won a major victory when U.S. District Judge Frank C. Damrell Jr. denied AT&T's summary judgment motion. "Plaintiff's name and identity is unique and non-fungible in that he is the person associated with breaking the sound barrier for the first time," Damrell wrote (Yeager v. Cingular Wireless, LLC,
673 F. Supp. 2d 1089, 1101 (E.D. Cal. 2009).)
Referring to Siegel's press release, the judge found that "the context of the communication and the nature of the information conveyed demonstrate that plaintiff Yeager's name and accomplishments were used to attract attention to defendant's unrelated wireless services." Damrell concluded, "Where a plaintiff's identity is used, without consent, to promote an unrelated product, such speech is actionable." (673 F. Supp. 2d at 1099.) The case could go to trial by the end of this year.
Chuck Yeager, a fighter pilot
during World War II and test pilot for the United States Air Force, became the first human being to travel faster than the speed of sound on October 14, 1947, flying the experimental Bell X-1 plane above the Mojave Desert at a top speed of Mach 1.06 (700 mph). Yeager also became the first commandant of the USAF Aerospace Research Pilot School, training astronauts in the early years of the NASA and USAF space program. His work during this period was profiled in Tom Wolfe's 1979 best seller The Right Stuff;
a motion picture by the same name appeared in 1983, with actor Sam Shepard portraying Yeager. The city of Charleston, in the pilot's native state of West Virginia, has named its airport for him. And advancing age has barely limited Yeager's exploits - last fall, for instance, he flew an F-16 fighter jet across the sound barrier once again at the air show at Edwards Air Force Base. "There's a reason why companies like AT&T, AMD, and Virgin want to associate themselves with him," says Harder, Yeager's lawyer. "He is at the pinnacle of American achievement."
Yeager's 1986 autobiography, Yeager,
sold more than two million copies. He has traded on his fame by doing advertisements for AC Delco automotive parts and Electronic Arts video games; endorsing luxury watches - "No person has pushed the limits of man and technology like Chuck Yeager," Rolex asserts on its website - and autographing lithographic prints depicting his most famous flight. At one aviation memorabilia event organized by Ed and Connie Bowlin, Yeager signed 900 prints.
According to his attorney, Yeager could have done a lot more endorsements. "He has the potential to be a poster boy, but he has chosen not to be," Harder says. In particular, Yeager "could have really cashed in with the aviation industry. But he avoided all of that. His career has been as a public servant in government."
Yeager had four children with his first wife, Glennis, who died in 1990. Glennis had set up Yeager Inc., a tax-shelter corporation for the children into which earnings from Yeager's book, commercials, and speeches flowed. Over the years, he attests, he has given his grown sons and daughters between $3 million and $5 million. He did not become particularly litigious until after he met former actress Victoria Scott D'Angelo, 36 years his junior, in 2000.
By the time Yeager married D'Angelo in 2003, the octogenarian was battling daughter Susan Yeager in court over control of his private assets, which had been placed in a trust. He and Susan were co-trustees, and she accused her father's new bride of having "undue influence" over him. A court referee subsequently awarded Chuck Yeager $915,000, later reduced to $423,981 on appeal, primarily for a trust asset Susan had sold (Yeager v. D'Angelo,
2008 WL 3889943 (Cal. Ct. App. [unpub.]).)
Victoria Scott Yeager, nearly a decade younger than any of her stepchildren, is fiercely protective of her husband. "I call a spade a spade," she told the San Francisco Chronicle
in 2004. "If you cheated Chuck or tried to take advantage of him, you'll hate my guts." The Chronicle
also reported that before meeting Chuck, she was a frequent small-claims plaintiff, suing airlines for losing her luggage and a cell phone company for excessive static on the line, among dozens of other claims.
Wild, Carter & Tipton, the Fresno law firm that initially represented Chuck Yeager in the AT&T case, has suggested that it is Victoria Yeager who now calls the legal shots. "V. Yeager handles the legal affairs" of her husband, it stated last year in suing the couple for failing to pay its legal fees. At one point, Wild Carter was representing them in no fewer than seven actions, including a case against the Bowlins for featuring products referring to Chuck Yeager on their Aviation Autographs website without his permission.
In 1953, just six years after Yeager's historic flight,
the Second U.S. Circuit Court of Appeals made legal history by officially recognizing a right of publicity (Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.,
202 F.2d 866 (2nd Cir. 1953).) "[I]t is common knowledge that many prominent persons (especially actors and ball-players), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements popularizing their countenances, displayed in newspapers, magazines, [buses], trains and subways," the court stated. "This right of publicity would usually yield them no money unless it could be made the subject of an exclusive grant which barred any other advertiser from using their pictures."
California enacted its own right-of-publicity statute in 1971. Critics of the law protested that, among other things, it encroached on the First Amendment since the use of a celebrity's name, image, or persona should be part of the circulation of ideas in a free society. But the statute has proved to be a boon for celebrity litigants ranging from singer Bette Midler and basketball great Kareem Abdul-Jabbar to socialite Paris Hilton and game-show hostess Vanna White.
The California appellate courts have generously interpreted the law's reach. In a case involving drawings of the Three Stooges, for instance, the state Supreme Court ruled that a work is not a "transformative" fair use when it "takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass." (Comedy III Productions v. Gary Saderup, Inc.,
25 Cal. 4th 387, 405 (2001).)
Douglas E. Mirell, a media lawyer at Loeb & Loeb in Los Angeles, argues that Comedy III,
along with another recent case, set up a "polar paradigm." If a work depicts the Three Stooges literally, he says, it clearly isn't protected by the First Amendment. But if a work depicts well-known personalities as monsters, for example, "that gross transformation would be protected. Everything in the middle is now subject to discovery - and that has created an enormous level of anxiety."
The case brought by Vanna White was an earlier publicity rights landmark. The Ninth U.S. Circuit Court of Appeals found that her identity had been misappropriated in a print ad depicting a futuristic robot?game show hostess (White v. Samsung Electronics America, Inc.,
989 F.2d 1512 (9th Cir. 1993).) But in a dissent to a denial of rehearing en banc, Judge Alex Kozinski urged judicial restraint. "Concerned about what it sees as a wrong done to Vanna White, the panel majority erects a property right of remarkable and dangerous breadth," he warned. "Under the majority's opinion, it's now a tort for advertisers to remind
the public of a celebrity."
Chuck Yeager may be trying to stretch that broad
"property right" even further with his suits against AT&T and Virgin America. (In April he dropped the case against Advanced Micro Devices after his counsel, San Francisco's De la Peña & McDonald, withdrew.)
There is no apparent precedent for finding a publicity rights infringement for the use of a name in the context of historical achievement. Mirell's firm defended a case in which Tiger Woods sued the Franklin Mint over a souvenir medal commemorating his historic twelve-shot victory at the 1997 Masters Golf Tournament. But the case was settled before any appellate argument.
In Mirell's view, AT&T used Yeager's name only as a historical reference point. "I can't imagine a person would be more or less interested in using the [Cingular] service based on the association with Yeager," he says. "The use of his name was incidental to the main message being conveyed." But he adds, "The state of the law is uncertain at best, creating an enormous opportunity for mischief. It may be difficult for AT&T to find their way out of this."
For Wolf Rifkin's Harder, however, context simply doesn't matter. "Any time you use a name without permission, you've possibly crossed the line into a right-of-publicity situation," he says. He notes that the families of historical figures such as Martin Luther King Jr. have protected their publicity rights. "If somebody used Judge Kozinski's name, and his name had acquired substantial value, I would assume he would be the first person to say that's not right. ... How is it any different for Chuck Yeager?
"These defendants know what the law is," Harder continues. "If they would just err on the side of avoiding infringement rather than stepping over the line and creating
an infringement, we would have less to worry about."
AT&T counsel Stroud did not respond to requests for an interview. But he spelled out the telecom giant's defenses in its motion for summary judgment. "Because the Press Release sought to make a point about the innovativeness of its preparedness program, it was the event
?and not the man
- which was important to the Press Release," Stroud argued. Even if the use wasn't incidental, he wrote, "AT&T's mention of his name is constitutionally protected expression under the First Amendment."
PR writer Siegel inadvertently proved to be a compelling witness for the plaintiff. In denying summary judgment, Judge Damrell cited Siegel's testimony that the purpose of the release was in part "to create positive associations in people's mind with the AT&T brand so they would think highly" of the company. "[P]laintiff's name and accomplishments in breaking the sound barrier are wholly unrelated to defendant's mobile command centers and cellular service in emergency situations," Damrell wrote. "Indeed, as reflected by Siegel's testimony, the use of plaintiff's name was carefully crafted as part of a strategy to promote defendant's brand." (673 F. Supp. 2d at 1099.)
The Ninth Circuit denied AT&T's petition for an inter-locutory appeal of Damrell's ruling. Yeager is now anxious to go to trial. "Any plaintiff is interested in moving their case forward," Harder says. And for his elderly client, "there's an additional issue: How long is it going to take?"
The case against Virgin America, meanwhile, is still in its preliminary stages. "Although the email [promoting in-flight Wi-Fi] reflected our enthusiasm for the General's contributions to aviation history, it was in no way intended to read as an endorsement of Virgin America," airline spokeswoman Abby Lunardini said in a statement. "We hope to resolve this issue amicably with General Yeager and his counsel."
For Chuck Yeager to win his federal claim,
he must show a reasonable likelihood that Siegel's press release would confuse consumers into believing he had endorsed an AT&T product or service. So far, his evidence on that front has been less than compelling - Victoria Yeager testified in a deposition that she spoke to people who believed he was affiliated with AT&T (673 F. Supp. 2d at 1104), but the company argues that she can't identify any of them.
Stroud has also argued in pleadings that Yeager, as a public figure bringing an action based on the use of his name in a noncommercial publication, would have to meet the Lanham Act's actual malice standard. "Plaintiff has no evidence, let alone clear and convincing evidence, of a subjective intent by AT&T to deceive consumers," Stroud wrote.
For the statutory publicity rights claim, however, Yeager has to show only that AT&T knowingly used his name for a commercial purpose without his consent. "This wasn't a scholarly article that was talking about the breaking of the sound barrier," says Eric J. Farber, a publicity rights specialist and partner of Farber, Foote & Company in Oakland. "All AT&T was doing was issuing a press release to create a bit of attention at a different level. ... AT&T was trying to identify their product as Chuck Yeager?like: 'It's bold, it's courageous, it breaks barriers.' " In that sense, he says, the press release was indistinguishable from a TV commercial.
Of course, a TV commercial has a larger audience than a press release, which - at least initially - is usually aimed at journalists rather than the general public. That could affect whatever damages a jury might award Yeager if it finds that his publicity rights were infringed. (American Apparel last year agreed to pay filmmaker Woody Allen $5 million in a settlement over a publicity rights claim involving an image of Allen from his 1977 hit, Annie Hall,
displayed on just two billboards.)
In January, Yeager also lost his suit against the Bowlins, and now he owes the memorabilia collectors $275,596 in attorney fees. Their attorneys have filed a lien on any potential award in the AT&T case.
But the indomitable Yeager is hardly slowing down. In August he filed yet another publicity rights suit, this time alleging that a light-plane manufacturer in Wyoming misappropriated his name on its website. (Yeager v. Aviat Aircraft,
No. 10-2055 (E.D. Cal. filed Aug. 2, 2010).)
Matthew Heller is a Los Angeles?based freelance writer and editor of On Point, a legal news website.