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Friday, November 03, 2006
Drew Brees Wants No Part in his Mother's Political Campaign

New Orleans Saints quarterback Drew Brees has told Mina Brees, his mother and an Austin attorney, to stop using his picture in TV commercials while she runs as a Democrat for a spot on Texas' 3rd Court of Appeals that reviews civil and criminal cases. The commercial in question includes a picture of Drew Brees in a San Diego Chargers uniform (his former team) and notes Mina Brees' football ties, which includes being the daughter of a successful high school coach and the sister of a former University of Texas quarterback.

Drew says he called his mother and asked her to stop running the ads, and when she did not return his calls or stop using his image, his agent sent her a letter threatening legal action. According to Drew, the commercials were sending a message of, " 'If you don't know much about the election, vote for me because I know Drew' . . . and that is a shame because the political process should be decided on your credentials." But according to Mina, "everything in the ad was true" and she did not anticipate it upsetting her son. She said the connection to football is relevant to her campaign because through sports, her father, Ray Akins, taught her a strong work ethic that she would bring to a career as a judge. Mina says a version of the spot that omits references of Drew was taped last week and sent to TV stations last Friday.

I don't care to play the role of family therapist with this post. Instead, I want to focus in on Drew's agent "threatening legal action." In addition to sports law, I teach torts and this would make a perfect hypothetical exam question for my Torts II class where we discuss one of my favorite areas of the law, the right of privacy and defamation.

Drew would lose on defamation because there is no false statement in the ad (i.e it's a photo of Drew and Drew is actually Mina's son), nor is there anything being said about Drew that would be considered "defamatory" (i.e. that would subject Drew to hatred, ridicule, or contempt).

There are three potential right of privacy claims to analyze here: Right of publicity; misappropriation; and false light. Right of publicity is the "use of the plaintiff's name or likeness, without consent, for the defendant's commercial advantage." The misappropriation tort protects against intrusion upon an individual's private self-esteem and dignity (similar to a public disclosure of private facts claim), while the right of publicity protects against commercial loss caused by appropriation of an individual's name or likeness for commercial exploitation. Here, there is no pecuniary loss to Drew and Mina has not reaped any financial gain from the use of Drew's identity. It would also be difficult for Drew to establish that Mina's use of his identity in trying to get elected as a judge resulted in any "commercial" advantage. Because Drew is a famous NFL quarterback and public figure, misappropriation would not be successful either because Drew would probably have a hard time convincing a judge or jury that the use of his name in the public arena intruded upon his private self-esteem and dignity resulting in emotional harm. A public disclosure of private facts claim fails for the same reason, and in addition because there are no "private" facts being disclosed in the ads.

Drew's best claim against his mother would probably be false light. For this claim, it is not necessary that the statements be defamatory; all that is required is that the defendant placed the plaintiff in a false light that would be "highly offensive to a reasonable person." Although the statements in and of themselves may be true, a cause of action can be established if the statement implies untrue and unfavorable acts taken, or views held, by the plaintiff. Here, for example, Drew could say that the use of his identity in the ads implies that he supports his mother's campaign, when in fact he does not. There is one big problem however....Texas, like some jurisdictions, doesn't recognize a separate cause of action for false light.

Oh well Drew, I tried my best....


Good post. Sad situation.

Anonymous Anonymous -- 11/03/2006 8:12 AM  

Brees absolutely has a right of publicity claim. She is using his name and likeness without permission to secure a job for which she will be paid. That is commercial advantage. If she is elected, she will realize a commercial advantage (her salary as an elected official). There is no requirement that there be pecuniary loss to the individula whose name and likeness has been misappropriated.

Your argument, taken to its logical conclusion would allow any politician to use photos of celebrities without permission or compensation in his or her campaign materials.

Anonymous john -- 11/03/2006 1:36 PM  

Actually, Brees' agent missed a much better and easier way of handling this. He should have had the NFL's licensing arm contact Mom. The picture of Drew in his San Diego uniform, without paying a licensing fee to NFL Properties, is arguably a violation of the NFL's trademarks.

Anonymous Gary -- 11/03/2006 2:12 PM  


I disagree with your last statement that the logical conclusion is that it would allow any politician to use celebrities identities. The only benefit for a politician to even use the identity of a celebrity is if they could also say that the celebrity endorses their campaign. This is a unique situation in that, by using Drew's identity, Mina is not saying that Drew endorses her. She is using it and saying, "Drew is my son and I come from a football family that has a strong work ethic, etc. etc." Many would question whether Mina's use here even helps her when running for judge. I actually think it's detrimental -- we should vote for you as judge because your Drew's mom?

But I do see your point that it could amount to a commercial advantage, because it is definitely not necessary that the defendant use the celebrity's identity in an endorsement context (which, by the way, is why the fantasy league case was decided wrong). I'm just not sure that a court would agree that the potential of being elected as a judge in the future constitutes commercial advantage. If she loses then there is no commercial advantage. So then would Drew only have a claim if she wins the election?

Blogger Rick Karcher -- 11/03/2006 3:57 PM  

I'm in Austin. I saw the ad run last weekend and it's pretty lame. It is basically his mom saying "vote for me, I'm Drew Brees' mom." I thought it was pretty weak ad at the time, and this was before I saw that Drew objected. If she did link in any of that other football background it was lost in the clear purpose of the message: to identify herself as linked to Brees.

Drew Brees is actually a hometown hero here in Austin, led his high school to a state championship. His mom was clearly was piggy backing this celebrity.

I don't know what that does for the legal analysis but the commercial was a sham.

Anonymous Anonymous -- 11/03/2006 5:11 PM  


Even if Texas recognized false light, the described use of Drew Brees's name seems to be protected by the First Amendment. All that is said here is that Mina Brees is Drew Brees's mother. While it is likely that many will assume Brees supports his mother's campaign, they would assume that anyway even if his name wasn't in the commercial. To say that the mere mention of his name could be a tortious act is to say that a mother cannot mention the identity of her own children. For example, Mrs. Brees might want to name her children so that her constituents could see how good a mother see was, as evidenced by how nice her children are, etc. Because Mrs. Brees is merely reporting facts, not making claims about Drew Brees's views, I think the commercial would be protected, especially because it's core political speech.

In addition, aren't nominal damages presumed in misappropriation cases? See, e.g., Petty v. Chrysler (2003), 343 Ill.App.3d 815, 826, 278 Ill.Dec. 714, 799 N.E.2d 432 ("A claimant alleging misappropriation of identity need not prove actual damages, because the court will presume damages if someone infringes another's right to control his identity"); accord Town & Country Properties, Inc. v. Riggins (1995), 249 Va. 387, 457 S.E.2d 356; Haith v. Model Cities Health Corp. of Kansas City (Mo.App.1986), 704 S.W.2d 684.

If so, and if the First Amendment did not protect Mrs. Brees's speech, and if TX adopted this position, and if Brees could prove misappropriation, Drew Brees could seek punitive damages if Mrs. Brees continued to run the commercial after being asked to stop, even if Drew suffers only nominal emotional injury.

Anonymous PK -- 11/04/2006 11:49 AM  


I agree that Drew most likely loses on the false light (if Texas recognized a cause of action for false light that is). In my post, I said Drew "could" argue that the ad falsely implies that he endorses his mom. But I don't think he would be successful arguing that for much of same the reasons that you stated (see my earlier comment to John).

Blogger Rick Karcher -- 11/04/2006 4:43 PM  

Rick --

Right of publicity only requires the image to be used for commercial advantage. It is the intent that matters here. Mrs. Brees intended to use it for commercial advantage, the fact that she might lose, doesn't matter, much like if someone uses Drew image in advertising a product that (ultimately) doesn't sell, it is still a violation of Drew's right of publicity. The relevant inquiry is whether or not the image was used to achieve some sort of commercial advantage (in this case, to win a $100,000/year (or whatever) job).

As for the implied endorsement, you can't convince me that Mrs. Bress wasn;t using Drew's image to imply that Drew endorses her campaign.

Anonymous john -- 11/06/2006 10:40 AM  


Thanks for the great comments. I understand what you are saying about intent, but I don't see how attempting to get a job amounts to a commercial advantage. Shouldn't the election as judge be the focus -- which is clearly not "commercial" -- as opposed to the salary she will make in return for doing the work as judge after she gets elected? That's just how I see it.

On the endorsement issue, she never said in the ad that Drew supports her. She is saying, "I'm a football person with determination and drive." Candidates show pictures of their families in campaign ads all the time to evidence that they are "good family" people with family values, etc. etc.

Blogger Rick Karcher -- 11/06/2006 1:05 PM  

Thanks, Rick. I guess I just don't agree that running for the position of judge is not commercial. I mean, would you consider running for President as a commercial activity? Running for U.S. Senate? I think they all clearly fall within the heading of "commercial activity." And given that judges are typically elected to multi-year terms with six-figure salaries, it's a pretty significant commercial endeavor at that(as evidenced by the significant fund-raising done by most judicial candidates).

Anonymous john -- 11/06/2006 1:52 PM  

thank you

Anonymous kurtlar -- 2/13/2009 1:30 PM  

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