FAULKNER v. HASBRO, INC.

Filing 31

OPINION. Signed by Judge Katharine S. Hayden on 7/21/2016. (nr, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

HARRIS FAULKNER,
Plaintiff,

Civil No: 15-6518 (KSH)(CLW)

v.
HASBRO, INC.,

OPINION
Defendant.

The Court writes for the parties.
According to the complaint, in 2014, Hasbro, Inc., the third-largest toy manufacturer in
the world, introduced the Harris Faulkner Hamster Doll into its Littlest Pet Shop toy line, which
is one of Hasbro’s most popular and lucrative brands. (D.E. 1 (“Compl.”) ¶¶ 12-13.) The
Littlest Pet Shop line features miniature plastic animals with exaggerated features, such as large
heads and eyes, and each figurine has a unique and individualized name—for example, the skunk
is named “Pepper Clark,” and the mongoose is named “Sunil Nevla.” (Id.) In addition, the
Littlest Pet Shop brand produces a cartoon program, two electronic gaming applications, online
videos, comic books, and stuffed animals. (Id.) After the hamster doll hit the toy store shelves,
sold in a “Pet Pawsabilities” two pack with a fox doll named Benson Detwyler, Harris Faulkner,
a professional journalist working as an on-air personality for more than 10 years with the Fox
News Channel, brought this lawsuit. (Compl. ¶¶ 7, 13.)
Hasbro has since brought a limited motion to dismiss the final claim of the three-count
complaint (D.E. 16), which asserts a violation of Faulkner’s right of publicity under New Jersey
common law. (Compl. ¶¶ 40-47.) She alleges that Hasbro misappropriated her name, likeness,
1

identity, or persona for commercial purposes without her consent, and in doing so decreased the
commercial value of her name and persona, impaired her ability to do her job, and harmed her
professional marketability and brand. (Compl. ¶¶ 42, 47.)
The other two counts, which are not subject to this motion to dismiss, 1 allege direct and
contributory liability for false endorsement/unfair competition under the Lanham Act, 15 U.S.C.
§ 1125(a). Hasbro argues that the “fundamental defect with Ms. Faulkner’s Complaint is that
she confuses her right of publicity, which protects the value of her unique identity … with her
rights under the Lanham Act, which protect the value of her name, to the extent she can show it
has acquired protection as an unregistered trademark.” (D.E. 21 (“Reply Brief”) at 10 (internal
citations omitted).)
New Jersey, unlike several other states, does not have a specific statute on the right of
publicity. However, for more than 100 years New Jersey has “recognized and supported an
individual’s right to prevent unauthorized, commercial appropriation” of his/her name or
likeness, resulting in a developed body of common law. Presley's Estate v. Russen, 513 F. Supp.
1339, 1354 (D.N.J. 1981) (citing Edison v. Edison Polyform Mfg. Co., 73 N.J.Eq. 136 (1907));
see Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953) (first
recognizing “right of publicity”); see also Hart v. Elec. Arts, Inc., 717 F.3d 141, 150 (3d Cir.
2013). The Third Circuit has held that:
[t]he right to exploit the value of [an individual’s] notoriety or fame
belongs to the individual with whom it is associated, for an
individual’s name, likeness, and endorsement carry value and an
unauthorized use harms the person both by diluting the value of the
name and depriving that individual of compensation.

1

Hasbro intends to bring further motion practice on the Lanham Act claims at another time. (Reply Brief at 11.)

2

Hart, 717 F.3d at 151 (citing McFarland v. Miller, 14 F.3d 912, 919 (3d Cir. 1994) (internal
quotations omitted).) The right of publicity protects a property interest in the identity gained and
enjoyed through personal labor and efforts. Hart, 717 F.3d at 151. See also Palmer v.
Schonhorn Enters., Inc., 96 N.J. Super. 72, 79 (Ch. Div. 1967) (“It is unfair that one should be
permitted to commercialize or exploit or capitalize upon another's name, reputation or
accomplishments merely because the owner's accomplishments have been highly publicized.”)
“[U]nder New Jersey common law, defendant would be liable for the tort of
misappropriation of likeness [also known as the right of publicity], only if defendant’s use of
plaintiff’s likeness was for a predominantly commercial purpose.” Tellado v. Time-Life Books,
Inc., 643 F.Supp. 904, 909 (D.N.J. 1986). So where the use of “name or likeness adds value to
or assists in selling the product at issue,” the defendant may be liable. Botts v. N.Y. Times Co.,
2003 WL 23162315, at *7 (D.N.J. Aug. 29, 2003) (Cooper, J.) (dismissing publicity claim where
the plaintiff’s name was used merely in its capacity as a place holder, like John Doe, and not
because it added value or assisted in selling a product) (citing Hooker v. Columbia Pictures
Indus., 551 F. Supp. 1060, 1062 (N.D. Ill. 1982)).
Hasbro argues that count three insufficiently pleads a violation of the right of publicity
because “[o]ther than her contention that the Hamster Toy uses the name ‘Harris Faulkner,’ the
Complaint contains no plausible allegations to support Ms. Faulkner’s claim that the toy
identified her or otherwise trades on her identity.” (Reply Brief at 1.)
The Court notes initially that Hasbro has failed to provide any authority showing that
motions to dismiss claims based on a violation of the right of publicity have been successful—
the cases it cites were decided on summary judgment. See, e.g., Hart, 717 F.3d 141; McFarland,
14 F.3d 912; Liebholz v. Harriri, 2006 WL 2023186 (D.N.J. July 12, 2006); Tellado, 643 F.

3

Supp. 904; Presley's Estate, 513 F. Supp. 1339; Parks v. LaFace Records, 329 F.3d 437 (6th Cir.
2003); Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407 (9th Cir. 1996); White v. Samsung
Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992); Vanderbilt v. Mitchell, 72 N.J. Eq. 910 (N.J.
1907); Palmer, 96 N.J. Super 72; Canessa v. J. I. Kislak, Inc., 97 N.J. Super. 327 (Ch. Div.
1967).
Substantively, the allegations about this toy line and Hasbro’s own statements establish
that when a character like the hamster doll is used for what it is intended – play – it may take on
new dimensions when it is linked up with and “becomes” a real person. According to Hasbro, “it
is clear that [Littlest Pet Shop] is a fictionalized world in which ‘Harris Faulkner’ and hundreds
of other toys are characters.” (Reply Brief at 7.) 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. In the specialized context of Hasbro’s successful toy line “world,” in which the
hamster is admittedly “a character” designed to be played with, Faulkner’s allegation that this
doll bears her unusual celebrity name sufficiently pleads a violation of the right of publicity.
I.

CONCLUSION
For the foregoing reasons, the Court denies Hasbro’s motion to dismiss Faulkner’s third

count alleging a violation of her right of publicity under New Jersey common law. An
appropriate order will follow.
/s/ Katharine S. Hayden_____
Katharine S. Hayden, U.S.D.J.

4