Vinci v. American Can Co.

591 N.E.2d 793, 69 Ohio App. 3d 727, 7 Ohio App. Unrep. 331, 1990 Ohio App. LEXIS 4243

• Court: Ohio Court of Appeals
• Decided: October 9, 1990
• Docket: No. 58857.
• Status: Published

Opinions

Per Curiam.

Charles Vinci, the 1956 and 1960 weightlifting Olympic gold medalist, alleged that the American Can Company, Minute Maid Corporation, Coca-Cola Company, Spencer Marketing and Marden-Kane Co. ("the companies") used his name and likeness on a series of promotional disposable drinking cups sold as Dixie Cups. Vinci sought damages for himself and the class of Olympic athletes ("the athletes") referred to on the promotional cups. In their sole assignment of error, the athletes argue that the trial court granted the companies' motion for summary judgment improvidently. Upon review of the record, we find that no genuine issue of material fact exists and that summary judgment was appropriate.

The Supreme Court of Ohio has established the standard for invasion of privacy by appropriation of the name or likeness of another:

"One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy, and the use or benefit need not necessarily be commercial." Zacchini v. Scripps-Howard Broadcasting Co. (1976), 47 Ohio St. 2d 224, [1 O.O.3d 129], 351 N.E.2d 454, paragraph one of the syllabus, rev'd on other grounds (1977), 433 U.S. 562.

The fundamental wrong is the appropriation of a person's name, likeness, or identity for one's own benefit "*** whether or not that benefit is pecuniary". Id. at 229-230. However, mere incidental use of a person's name or likeness is not actionable under the "right of publicity". In Zacchini, the Supreme Court of Ohio quoted with approval the then proposed Restatement of Torts 2d, Sec 652C (Draft No. 13):

"Incidental use of name or likeness. The value of the plaintiff's name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity.

"No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded. The fact that the defendant is engaged in the business of publication, for example of a newspaper, out of which he makes or seeks to make a profit, is not enough to make the incidental publication a commercial use of the name or likeness." Zacchini, supra, 47 Ohio St. 2d at 231, fn. 4. Our review indicates that the mention of the athletes names within the context of accurate, historical information was incidental to the promotion of the Dixie Cups by the partnership between the Minute Maid Corporation and the United States Olympic Committee The reference to the athletes and their accomplishments was purely informational; there was no inference the athletes used, supported, or promoted the product. Benally v. Hundred Arrows Press, Inc. (D.C. N.M. 1985), 614 F. Supp. 969, rev'd on other grounds; (10th Cir., 1588), 858 F.2d 618; cf. Cher v. Forum International Ltd. (9th Cir., 1982), 692 F.2d 634. Reference to the athletes' names, likenesses, and identities was merely incidental, historical information.

Appellant's assignment of error is overruled.

The judgment of the trial court is affirmed.

VICTOR, J., concurs. Sitting by assignment, Judge William H. Victor, Retired, of the Ninth District Court of Appeals. Sitting by assignment, Judge Joseph P. Mallone, Retired, of the Ashtabula County Common Pleas Court.