Right of Publicity: NBA Star Sues Over Ex-Wife’s Appearance on Reality Show

American professional basketball player Gilbert Arenas is suing reality show “Basketball Wives”  over their casting of his ex-wife. The production studio released a partial cast list in June 2011, and in promotional materials made implied references to Arenas. The argument being made is that “the very presence of defendant Govan and the title of the show is an obvious reference to plaintiff and use of plaintiff’s likeness” and that the show is “likely to mislead or confuse consumers that defendant Govan is either married to plaintiff and/or has special insight into plaintiff’s current life.”

Generally speaking, American trademarks law provides protection for one’s image. Infringement of one’s “right of publicity” occurs when a company uses someone’s image or likeness in a commercial way without that person’s authorization, and a significant amount of people can identify the right-holder in that unauthorized use. It is the idea that a company is using someone’s image, in this case Arenas’, to benefit commercially without Arenas’ authorization. Note that the right of publicity differs from a defamation or false endorsement claim on the point of falsity. The right of publicity concerns unauthorized commercial use; whereas false endorsement concerns unauthorized use that is false (example: if the show was called “Stories From the Mouths of Deadbeat-Drugaddict-Dress-wearing NBA Players: Basketball Wives” and it was not true).

If it could be proven that the title “Basketball Wives” triggers the assumption in viewers that the NBA players endorse the show, there could also be a claim against Basketball Wives as most of the cast members are not actually wives, but girlfriends or exes. The show benefits from the fact that the cast members are all associated with NBA players, and is freeriding off the association of the NBA with the show. I may be wrong, but I’m curious to see how well the show would do if the basketball player boyfriends/husbands in “Basketball Wives” were a group of friends who liked to play pickup games after their 9-5 jobs.

– ck

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