A court will likely find that Baseball Illustrated did not infringe upon Mike Madsen’s right of publicity because, not only is the image used of him not readily identifiable under the statute, but Baseball Illustrated’s primary purpose concerns sports coverage in the Houston area, and thus constitutes the appropriate newsworthiness affirmative defense under the statute.
The Texas Right of Publicity Statute provides that “any person who knowingly uses another’s…photograph, or likeness in any manner on or in products, merchandise, goods or services, without such person’s consent…shall be liable for any damages sustained by the person or persons injured thereof.” Tex. Rev. Civ. Stat. Ann. §62 (West 2016).
The statute identifies three necessary requirements for a person’s right of …show more content…
Baseball illustrated did, knowingly use a photo of Madsen. Their purposes were related to that of advertising. And they did achieve all of this without obtaining consent from Madsen. However, none of these actions can qualify for an publicity violation against them, given that the image did not qualify as an infringeable photograph under the plain language of the statute, nor did the use qualify as cause of action by which Mr. Madsen could file suit under.
In accordance to both the term’s commonly understood meaning and by reference to the definition given by Texas publicity infringement law, the term photograph should be read to encompass only an image of someone that is readily identifiable to the general public. This qualification is met when, “one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is