In this case, News America Publishing, Inc., the publisher of a well-known magazine, conducted a reader poll asking participants to vote for their favorite member of the popular music group 'New Kids on the Block.' This poll was advertised prominently using the band's name, and fans were charged to call a particular phone number to cast their votes. The New Kids on the Block, a well-established pop band, filed a lawsuit against the publisher, claiming that the use of their name violated their right of publicity and constituted trademark infringement.
Does the use of a trademark or a celebrity name in a commercial setting, such as a poll, constitute a violation of the right of publicity or trademark infringement under the nominative fair use doctrine?
Under the nominative fair use doctrine, the use of a trademark does not infringe if it is necessary to identify the trademarked product or service, there is no suggestion of sponsorship or endorsement by the trademark holder, and only so much of the mark is used as is necessary to identify the product or service.
The Court held that News America Publishing's use of the New Kids on the Block’s name was nominative fair use and did not violate the right of publicity or trademark law.
The Ninth Circuit reasoned that using the band's name was necessary for News America Publishing to conduct the poll accurately, as the identity of the band members is integral to the poll's purpose. The court found no likelihood of consumer confusion regarding championship or endorsement by the band because the publication made it clear the survey was independent of the New Kids on the Block. Furthermore, the use of the band’s name in this context did not suggest endorsement and was limited to what was necessary for conducting a legitimate poll.
This case is significant for students of entertainment law and intellectual property as it reinforces the balance between the commercial rights of individuals and entities to their likeness, against the rights of free expression and commerce protected by the First Amendment. The decision emphasizes the application of the nominative fair use doctrine within commercial expression, particularly in media and retail environments, and delineates the limits of celebrity control over their public personas.
The New Kids on the Block v. News America Publishing, Inc. case illustrates the complex balancing act courts must perform when rights of publicity and trademark protections intersect with expressive freedoms. By establishing a clear precedent under the nominative fair use doctrine, the Ninth Circuit provided media entities with more precise guidelines on how they might use celebrity names and likenesses without overstepping legal boundaries. For legal practitioners and students, this case serves as a pivotal example of how common law doctrines evolve to address the growing interaction between intellectual property rights and free speech. It underlines the legal nuances of using identities and trademarks in a way that respects both the economic rights of figures in public life and the public's interest in discourse and media consumption.