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Friday, July 07, 2006
Woman Fights Boras Over Sale of Anti-Damon Merchandise

Curt Brown of The Standard-Times reported last week about a dispute between Johnny Damon (along with his agent Scott Boras) and Ann Sylvia. Ms. Sylvia operates a business out of her home, which she started in 2001, specializing in the sale of baby clothing and household decorations/accessories on eBay. More specifically, she sells "Damon Sucks" bibs, onesies and toddler T-shirts on ebay.

Sylvia, of New Bedford, Massachusetts, was hurt first when the Red Sox' former star signed with the Yankees for $52 million. She was hurt a second time when Boras invoked the intellectual property rights to Damon's name and blocked the sale of the parody items on eBay using eBay's VeRO program. Damon and Sylvia subsequently compromised, and the settlement terms require her to delete the specific references in her description of the merchandise that identifies the products as being critical of Johnny Damon. The merchandise will just say "Damon Sucks," but will not identify the person as Johnny Damon, as it previously did.

Sylvia's unique perspective on her dispute with Boras is quite interesting and worth reading. She received the help of an attorney at the Public Citizens Litigation Group, Greg Back, who analogized the "Damon Sucks" parody to the parodies that were the subject in Cardtoons v. MLBPA and held to be protected by the First Amendment. Back opined as follows:
I think the case closest on point to your situation is the Cardtoons case. Cardtoons makes parody trading cards with caricatures of Major League Baseball players along with critical commentary. MLB sent a cease-and-desist letter, and Cardtoons sued for a declaratory judgment. The court held that even though the cards ran afoul of the Oklahoma right of publicity statute, they were protected by the First Amendment. The court wrote that "the cards provide social commentary on public figures, major league baseball players, who are involved in a significant commercial enterprise, major league baseball. While not core political speech (the cards do not, for example, adopt a position on the Ken Griffey, Jr., for President campaign), this type of commentary on an important social institution constitutes protected expression." MLB argued that the cards should not be protected because Cardtoons was selling them for a profit. In response to this, the court wrote, "we see no principled distinction between speech and merchandise that informs our First Amendment analysis. The fact that expressive materials are sold neither renders the speech unprotected, nor alters the level of protection under the First Amendment. Cardtoons need not give away its trading cards in order to bring them within the ambit of the First Amendment."
Geoff recently discussed the legality of a music band's use of the name "Gnarls Barkley". The Damon dispute also brings to mind the Yogi Berra lawsuit in which he filed a complaint against TBS for using his name in conjunction with an advertisement for 'Sex and the City' that read, "Yogasm: a) a type of yo-yo trick b) sex with Yogi Berra c) what Samantha has with a guy from yoga class." As Greg discussed on the blog last year, Berra and TBS subsequently settled that lawsuit for an undisclosed amount, but which Berra's attorney referred to as "substantial".

It's refreshing to see somebody play "hardball" with Boras, and win. Maybe the owners could learn something from Ms. Sylvia....


I think this is a tough case. Obviously, the woman couldn't sell t-shirts with just Johnny Damon's name or picture. That would be a clear violation of Damon's right of publicity. The fact that she is using Damon's name in a statement, makes it a tougher case. Could she sell "I love Johnny Damon" shirts? or "Damon is great" shirts? If so, isn;t that an easy way to exploit celebrities' identities for commercial gain (without having to pay the celebrity anything)?

I think the cases are all over the map on this, and seem to depend largely on how sympathetic the figures are. The 6th Circuit recently ruled that the use of Rosa Parks' name in song lyrics violated her rights. And yet the same Circuit found that the sale of mass-produced lithographs of Tiger Woods didn't violate his rights. Hard to make sense of some of these rulings other than to say that judges are making rulings based on how the feel about the celebrity.

Anonymous john -- 7/07/2006 8:53 AM  


Excellent comment and I couldn't agree more. What's interesting about the Tiger Woods case is that the 6th Cir. expressly wrote that Tiger Woods makes lots of money -- not sure what that has to do with the legal analysis. I discuss the Woods case in my sports law courses and the bottom line question is, which side do you want to make a profit? I hope the legal answer to this situation is not based upon which party has the most assets.

Blogger Rick Karcher -- 7/07/2006 10:05 AM  

Exactly right, Rick. Especially since the person making the money might change depending on the outcome of the case. Today it's some guy making Tiger Woods lithographs in his basement; tomorrow (once it's clear that you don't have to pay Tiger anything to use his image), it's multi-million dollar corporations mass producing the same product. Same with mom-and-pop fantasy baseball web sites.

Anonymous john -- 7/07/2006 1:06 PM  

So... can Matt Damon sue now?

Blogger Neel Mehta -- 7/08/2006 3:20 PM  


Interesting point, but it basically comes down to an issue of identification. Matt Damon would not have a claim because the merchandise is obviously indentifying Johnny Damon in that it contains a picture of a baseball as well as the fact that people would probably associate such a slogan with a professional athlete as opposed to an actor.

Blogger Rick Karcher -- 7/09/2006 10:03 AM  

It was, of course, a joke. But I agree that it might become interesting if, say, Matt Damon decided to play Ted Williams in a biopic.

Blogger Neel Mehta -- 7/09/2006 2:58 PM  

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