Welcome back to Legal Geek, coming to you from a new home studio, so apologies for any sound quality quirks while we get used to the new space. This week, we review an ongoing case from Illinois in which a hacky sack world record holder is claiming he has a right of publicity that comes from his world record holding status, in a conflict with Wendy's and Guinness World Records.
https://archive.org/details/LegalGeekEp130
Children of the 90's will remember the hacky sack craze, a game in which you kick a small footbag or beanbag repeatedly with your feet and knees to keep the footbag off the ground for as long as you can. In 1997, a man named Ted Martin set the record for consecutive kicks of a hacky sack, as he achieved 63,326 kicks in a little less than 9 consecutive hours of play. That record still stands today, per the record keepers at Guinness World Records.
Ted Martin leveraged this world record into a commercial business, as he sells footbags to those still interested in the hacky sack game. Thus, it should come as no surprise that Martin objected to the unauthorized use of his name when Guinness and Wendy's combined on a 2013 kids meal promotion that gave out footbags with marketing asking kids if they could beat Ted Martin's longstanding record. The interesting legal question is whether Martin's world record entitles him to sufficient fame to make a right of publicity claim against such a marketing practice.
Under the Illinois law being applied, the federal courts thus far have denied Martin's requests to hear this case in detail. Their reasoning has included the fact that Martin does not challenge Guinness's rights to publish his name and record in their book, and that it would be a farce to allow them to sell a book with Martin's name in it while prohibiting the same recitation of a fact in promotional materials. Martin argues this is a distinction between free speech and commercial speech that the courts do not comprehend.
As you might guess, when a person like Martin represents themselves in court and makes such broad sweeping arguments, it's probably not a great sign. He does cite an interesting prior case in Illinois where retailer Jewel-Osco was found liable under the Illinois right of publicity law for including Michael Jordan in a full page ad in a magazine congratulating him on his Hall of Fame induction while also connecting him with their store slogan. However, Jordan is on another level of celebrity fame, and the apparent association between Jordan and Jewel-Osco was much stronger in that case than the association that could be implied by the Wendy's advertisements here.
The Bottom Line is, a hacky sack world champion likely has some ability to commercialize his small claim to fame and protect that fame with trademark and branding type protections. When it comes to proving higher burdens of proof associated with most right of publicity laws as applied to private citizens instead of celebrities, cases like this one often fall short. So while Martin will continue to hold the world record, a payday does not appear to be in his future for this case.
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