Question

It is a little known fact that Johannes Martin holds the Guinness World Record for consecutive kicks of a footbag, commonly associated with the "Hacky Sack" brand. His record of 63,326 kicks in just under nine hours has stood since 1997. Vitalize Corporation, seller of the "4-Hour Energizer" energy shot, recently launched a commercial featuring an actor who boasts that in just four hours he "ran a marathon, swam the English Channel, learned origami, and beat the record for Hacky Sack – all because of 4-Hour Energizer." In the commercial, the actor appears to be folding an origami animal while kicking a footbag. Although the actor does not resemble him, Martin has filed suit against Vitalize contending that the actor’s statement that he "beat the record for Hacky Sack" is an unmistakable reference to him and a misappropriation of his identity. The most likely result is that he will:

Group of answer choices

Lose, because Martin is not identifiable from the commercial.

Win, because Vitalize has misappropriated Martin’s identity for purposes of trade.

Answer 1

The most likely result is that Johannes Martin will lose the lawsuit against Vitalize Corporation. The fact that the actor in the commercial does not resemble him makes it difficult to argue that his identity was misappropriated. To successfully claim misappropriation of identity, Martin would typically need to show that his name, image, or likeness was used without his consent for commercial purposes, causing harm or confusion. In this case, it may be challenging for Martin to prove that the actor's statement directly refers to him or that it caused any harm or confusion among the audience.

Answer 2

Johannes Martin's success in the lawsuit against Vitalize for misappropriation of identity depends on whether he is identifiable from the commercial and if there is an implied endorsement. If he is not clearly identifiable and there's no implied endorsement, he is likely to lose. Ultimately, the court would need to assess how identity and endorsement are construed in the context of the claim.

The student's question pertains to the legal concept of misappropriation of identity, which is closely related to the right of publicity. When Johannes Martin filed suit against Vitalize contending that the actor’s statement that he "beat the record for Hacky Sack" was an unmistakable reference to him, he is claiming that Vitalize used his identity for commercial gain without his consent.

The likelihood of Martin winning or losing the case would depend on multiple factors, including how recognizable his identity is specifically linked to the stated record and the context of how the information is presented in the commercial. If the statement about beating the Hacky Sack record is viewed as a false or misleading representation that suggests an endorsement by Martin, then this could be seen as a misappropriation of identity.

However, if Martin is not clearly identifiable from the commercial and there is no implied endorsement, Martin is more likely to lose the case because the success in a misappropriation of identity or right of publicity claim generally depends on the plaintiff being identifiable from the contested representation. The defendant (Vitalize) could argue that the statement was not a direct reference to Martin — and merely a hyperbolic claim to demonstrate the efficacy of the product — which could lead the court to find in favor of Vitalize.