The Hamster Case Continues as District Court Denies Hasbro's Motion to Dismiss
A district court in New Jersey denied Hasbro's motion to dimiss Fox news reporter, Harris Faulkner's right of publicity claim. I wrote earlier about Faulkner's lawsuit against Hasbro for naming its hamster toy Harris Faulkner.
The real-life Faulkner claims that the toy violates her right of publicity by using both her name and likeness, and also violates the Lanham Act by suggesting a false endorsement or connection with her. Hasbro's motion to dismiss only sought to dismiss the right of publicity claim.
Hasbro contended that the toy does not look like Faulkner and does not otherwise invoke her identity. Faulkner opposed the motion on the grounds that the use of her name alone violates her right of publicity. She also continues to claim that the hamster looks like her.
As I noted in my earlier posts, the coincidence of the name of the hamster suggests that Hasbro did name the hamster after her. The likeness claim, however, remains unconvincing.
Late last week, a district court judge in New Jersey agreed with Faulkner that she had made enough of a showing in her complaint that the case could move forward to discovery. Faulkner should have the opportunity to prove that her identity was evoked by the hamster. Judge Katherine S. Hayden concluded that "Faulkner is entitled to adduce evidence that as a child plays inside this fictionalized, highly interactive world, s/he may see or put into the girl hamster doll named Harris Faulkner the identity, persona, and characteristics of the real Harris Faulkner."
The court seems exactly right that this case should proceed. Faulkner has indeed pled a sufficient case at least as to the use of her name to overcome a motion to dismiss.
However, the focus on children seems misplaced--not only because adults buy and even play with these toys, but because most of these toys are likely bought by parents (or adult friends and relatives) for their children. Adults are much more likely to know who Harris Faulkner is than the children are. As the case proceeds, I'm sure this misguided focus will be adjusted.
Regardless, I'm betting on this one to settle. In the meantime, you might want to stock up on the hamster--seems Amazon has only 11 left in stock. And it may be renamed any day now, so it's likely to become a collector item. (If you buy one, make sure to keep it pristine and in its packaging for resale value.)
THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World
This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.