“Richard Cheese” Sheds Insight on the Right to Publicity / Right to Privacy Distinction

While the unique “right of publicity” is often, yet understandably, overlooked as being a subset of intellectual property, this classification proved crucial in a fresh Second Circuit decision. On November 1st, the court upheld Hartford Casualty Insurance Company’s refusal to defend independent music label Oglio in a separate suit involving right of publicity allegations.

The other suit was instigated in 2006 by Mark Jonathan Davis, known to his fans as “Richard Cheese,” a comedian/lounge singer whose character performs lounge versions of famous pop and rock songs. He entered into a contract with Oglio from 2000-2003 in which he was to record an album entitled Lounge Against the Machine (LATM) as Richard Cheese, which Oglio would then distribute. In addition to owning the copyrights to the recordings, Oglio also had the right to use the name “Richard Cheese” and his likeness in promoting and advertising the album. In addition, Oglio retained the option. exercisable for two years after execution of the agreement, to require Davis to record a second album with similar terms upon a minimum advance payment of $15,000.

Following the financial success of LATM in 2001, Oglio attempted to exercise its option, but sought to reduce the minimum advance from $15,000 to $7,000. After Davis refused, Oglio threatened to replace him with other singers. Oglio followed through and in 2002 released two lounge-style albums: Diary of a Loungeman by “Bud. E. Love” and Sub-Urban by “Jaymz Bee & Deep Lounge Coalition." According to Davis’ complaint, “the Competing Albums [were] a way to piggyback on [LATM] and to trade on the goodwill and public recognition earned by Davis. […] Both the names of the competing artists and the titles of the Competing Albums were obviously intended by Oglio to attract fans of Richard Cheese's lounge-style versions of songs and to capitalize on Davis's celebrity […] and reduce the value and unique goodwill of Davis's Professional Name throughout the entertainment industry.” Oglio Entertainment Group, Inc. v. Hartford Casualty Ins. Co., 2011 Cal. App. LEXIS 1361, 4-5 (Cal. App. 2d Dist. Nov. 1, 2011). Upon expiration of their three year agreement, Oglio continued to sell and promote Davis’s albums along with the competing albums on its website, www.richardcheese.com.

Oglio and Davis eventually settled for $80,000 in September 2006 after Hartford disclaimed coverage in May 2006. Oglio then filed the present suit against Hartford for breach of contract. Oglio claimed that Davis’ alleged injury for appropriation of his name and likeness was included in the policy’s coverage for privacy violations. However, Hartford answered that the right of publicity is not only separate from privacy rights, but falls under intellectual property rights, which were specifically excluded from coverage. The exclusion provision pertained to any advertising injury “[a]rising out of any violation of any intellectual property rights, such as patent, trademark, trade name, trade secret, service mark or other designation of origin or authenticity.” Oglio Entertainment Group. LEXIS 1361 at 17.

As a final chance, Oglio attempted to demonstrate that their advertising injury was one, covered by the policy, arising out of “[c]opying, in your ‘advertisement,’ a person's or organization's ‘advertising idea’ or style of ‘advertisement.’” Id. at 20. However, Hartford’s counter that this policy extended only to the style of advertisement, as distinguished from the product being advertised, was sufficient to sustain their demurrer. The court held that, “this does not allege that Oglio copied, in an advertisement, Davis's advertising idea or style of advertisement, but that Oglio sought out artists to copy Davis's product and later sold a competing product, injuring Davis's sales and the value of his professional name.” Id. at 21.

Indeed California’s infamous right of publicity law, codified in Cal. Civ. Code §3344, defines a right of publicity violation as consisting in, “any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods [emphasis added], or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent.