Can you imagine unknowingly giving away the rights for your face?
Todd Duffey, aka: Chotchkie’s Waiter in Office Space, sued 20th Century Fox for using his face on both the book’s cover and one of the buttons, claiming false endorsement under the Lanham Act, 15 U.S.C. §1125(a), which grants a claim only if the defendant is using his likeness without permission. Here, Duffey signed a one-page Day Player Agreement with Cubicle Inc., the production company behind Office Space, which granted Cubicle “all rights throughout the universe” to Duffey’s performance. A federal court in New York has dismissed Duffey’s claim (thanks to The Hollywood Reporter Esq. for posting the decision) because his agreement granted the production company “all rights throughout the universe in and/or to all results . . . including, but not limited to, the rights to. . . exploit in any manner. . . any pictures, likeness or representations made hereunder, of Duffey.”
Duffey argues that the rights granted to Cubicle did not include use of images with consumer merchandise. The court applied the “objective intent” test to determine whether a contract is ambiguous. U.S. District Court Judge J. Paul Oetken also applied the contract interpretation that “contract terms are given their plain, ordinary, and generally accepted meanings unless the contract itself shows them to be used in a technical or different sense,” which it did not, in this case.
Duffey also argued that other performers had specific merchandising provisions, but the court said it could not rely on extrinsic evidence to create an ambiguity in Duffey’s agreement. Meaning his claim failed because he signed away his rights.
However, there are problems to this — as JD Supra points out, “in the absence of express language which grants the right to use an actor’s image in merchandising, there might be a cognizable claim on the part of the actor if their image is used. – and. . . it can be difficult, if not impossible, to predict ahead of time which actors a producer will want to use in merchandising” and most performers, in contrast to Michael Jordan, do not have the bargaining power and/or the resources to hire an attorney to negotiate the best deal possible for them, especially for a Day Player Agreement.
For those that don’t remember Duffey in Office Space…