Stay at Home Mom K’s Johnny Damon’s Right of Publicity Claim

By John Ottaviani

Last week, ESPN.com reported yet another unsuccessful and ridiculous attempt to use trademark law to stifle negative commentary.

According to the article, Ann Sylvia, a Massachusetts mother of two children, has operated an on-line store on eBay since 2001 so she can spend more time at home with her children. The on-line store “Owen & Emma’s Place,” is named after her children. Among other items, the on-line store sells baby and children’s clothing and maternity clothes.

Among the “Daddy’s Girl” and “My Mom is Hot” baby bibs and onesies are several items that reveal Ms. Sylvia’s baseball affections. The problem in this case was not the “Yucky Yankees” or “Yankees Suck” bibs. Ms. Sylvia also offers bibs and onesies with the phrase “Damon Sucks.” Last month, eBay pulled the listing after The Scott Boras Corp. (the entity which acts as agent for the New York Yankee baseball player Johnny Damon) complained that these items violated Mr. Damon’s right of publicity. The complaint went so far as to threaten to blemish Ms. Sylvia’s eBay rating and jeopardize her “Power Seller” status.

Rather than backing down, Ms. Sylvia swung for the fence. She hit a home run when she pointed out that there were other baseball players named Damon in the major leagues, so that her bibs might not be referring to Mr. Damon at all. Ms. Sylvia eventually reached a compromise by agreeing not to use “Johnny,” “Boston,” “Red Sox,” “New York,” or “Yankees” in the listing for that particular bib.

For those who are not baseball fans, the background to this story is that Mr. Damon played baseball for the Boston Red Sox team from 2002-2005, and played a key role in Boston’s 2004 World Series Championship. After the 2005 season, however, Mr. Damon elected to leave the Red Sox and signed a four year contract for a higher salary with the New York Yankees, the arch rival of the Red Sox. Many Boston fans (including my daughter) now feel that Mr. Damon is a traitor.

After Eric’s commentary on the case where trademark law was used by a restaurant to try to stop a non-profit group from handing out leaflets about the restaurant’s labor practices, I hope this isn’t a trend. Will the entire crowd be enjoined from chanting epithets at Mr. Damon the next time he appears in Fenway Park? Outside the stadium, will all the vendors of merchandise that uses the names or likeness of Mr. Damon and his teammates in uncomplimentary ways be confiscated? There are significant First Amendment issues here. It also seems that Mr. Damon and his agent might spend their time more efficiently chasing counterfeiters, rather than those clearly commenting on his playing ability, business dealings or loyalty.

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