If you are a fan of the NFL, you may not realize it but have probably seen John Thompson in the end zone at a Cleveland Browns games dressed in his signature dog mask wearing an orange construction hat wielding a rubber bone in a frenzy. Thompson has been attending Browns games in his costume for 25 years and has become known as "Big Dawg."
And if you ever played a video game, you have probably played or heard of Madden NFL manufactured by Electronic Arts. Thompson recently sued Electronic Arts because Madden NFL 09 contains an image of a fan at Browns games in a costume resembling Thompson's signature costume.
Thompson's claim is based on the fact that every one of us enjoys what is referred to in legal jargon as a right of publicity. This means that, no one has the right to use your name, likeness or identity for commercial purposes without your permission. The right of publicity is a derivative of your overall right to privacy. In other words, because you have a constitutional right to privacy, you also have a right to not have your face plastered over billboards, on the side of buses, in magazines, etc. However, while fame is not a prerequisite to assert a claim for a violation of your right of publicity, the more famous you are, the more the use of your name or likeness is worth. For example, someone is certainly going to pay Lebron James more money to endorse their product than they would you (unless of course you happen to be Tiger Woods). Accordingly, if someone uses your likeness without your authorization and you are an just an average Joe like me, you may have a difficult time proving that you have been substantially damaged. California statutory law does throw you a little bone (no pun intended) entitling you to a minimum of $750 plus your attorney's fees if your right of publicity is violated.
In order to establish that your right of publicity has been violated, it is not necessary that the your exact image or likeness be used, but some portion of the public viewing the advertisement must be able recognize the fact that it is you. For example, in one instance a cigarette manufacturer used an image of race car driver Lothar Motschenbacher in front of his race car in a commercial. Motschenbacher's face was not recognizable in the advertisement, but the car bore virtually all of the same unique markings of Motschenbacher's car except that the number was changed and a spoiler was added. The court ruled that Motschenbacher could pursue his right of publicity claim. In another famous case, Samsung used the image of a robot dressed in a wig, gown and jewelry that resembled Vanna White's hair and dress. The robot was also positioned by a game board, which was recognizable as the game board from the Wheel of Fortune set. The court ruled that Vanna White could pursue her right of publicity claim. Bette Midler and Tom Waits even successfully pursued claims for a violation of their right of publicity based on the use of imitations of their voice in commercials.
When I first read about Thompson's claim, my first thought was that his claim is of questionable validity. While I've seen the guy at Browns games, I have no idea who the man behind the mask is and I assumed few others knew the actual identity of the dog faced fan. However, my opinion changed when I read a little more about the case. Mr. Thompson's name is not just John Thompson, he had it legally changed to John Big Dawg Thompson. That is one serious fan. He has also become a mini local celebrity in the Cleveland area appearing in publications, commercials and on TV broadcasts. In fact he was even inducted into the Pro Football Hall of Fame's inaugural class of its Hall of Fans in 1999. Given all of that, I think that it is certain that at least in northern Ohio, people playing Madden NFL 09 instantly recognize the character in the game as John Big Dawg Thompson. Apparently Electronic Arts agrees as it has been reported that the case is in the process of settling for an undisclosed amount of money.