The Golden Bear Settles Right of Publicity Claim
On January 16, 2019, now-retired golfer Jack Nicklaus, famously known as “The Golden Bear,” sued PowerPro Sports LLC, seeking injunctive relief and damages for using his name, likeness, quotations, pictures, and videos in promoting its product, the Powerchute, without his consent.1 The Powerchute is a golf swing trainer designed to add resistance to practice swings to increase clubhead speed, driving distance, technique, contact, and more.2 Nicklaus, suing through Nicklaus Companies LLC, claimed that the Florida-based company, PowerPro Sports, violated his statutory right of publicity under Florida law.3 Nicklaus also claimed false endorsement, trademark infringement, and unfair competition all under the federal Lanham Act.4
Over a decade ago, Nicklaus agreed with Jim Sowerwine from PowerPro to take photos and videos using the Powerchute swing trainer for a day.5 However, Nicklaus claims his consent terminated when Sowerwine left the company and he subsequently refused to enter into a licensing deal with PowerPro Sports.6 PowerPro had since been using a video of Nicklaus on its website along with quotations and Nicklaus’s federally registered trademarks.7 The content was eventually removed when the lawsuit was filed.
The right of publicity grants a celebrity the exclusive right to control the commercial use, and prevent exploitation of, his or her name, image, and likeness.8 The right is unique in that it is reserved for celebrities since their identity is more valuable in promoting products and services.9 Florida’s statute specifically prohibits the nonconsensual use of a “name, portrait, photograph, or other likeness of any natural person” for commercial purposes.10
Tim Yablonowski, founder of PowerPro Sports, averred that the company was not infringing on Nicklaus’s trademark and publicly speculated that the 18-time major champion commenced the suit because he needs the money.11 This assumption was misplaced. Nicklaus, despite playing in an era when golfers earned a fraction of what players earn today, is currently the world’s third-wealthiest golfer; his net worth is approximately $320 million.12 Nicklaus was merely trying to enforce his intellectual property right to protect the economic value in his image should he choose to endorse other products or services in the future.13
On February 11, 2020, Nicklaus agreed to settle the claims with PowerPro.14 For $15,000 and an agreement to cease using his publicity rights and marks, Nicklaus dropped the lawsuit.15 The parties filed a joint motion for court approval on February 20, 2020.16 Had the parties not settled, the Southern District of Florida would likely have decided the case based on whether Nicklaus’s initial consent terminated. While false endorsement, trademark infringement, and unfair competition claims are often litigated by sports figures, there is not much case law interpreting Florida’s right of publicity statute for sports figures.17 As a result, it is unclear who the court would have ruled for.
Celebrated golfers protecting their intellectual property rights is nothing new; golfers are easy and often profitable targets. In 2003, however, the Sixth Circuit ruled for an artist and against renowned golfer Tiger Woods when the artist painted Woods’s 1997 Masters celebration and subsequently distributed 250 limited edition copies for $700 each.18 The Court of Appeals held that the artist’s freedom of expression in the paintings trumped Woods’ right of publicity and economic interests under the Ohio statute.19 Unlike the artist in Tiger’s case, PowerPro used Nicklaus for purely commercial purposes but in the end, Nicklaus took the “gimme” and settled.
Complaint at 4-6, Nicklaus Companies LLC v. PowerPro Sports LLC, 9:20-cv-80052 (S.D. Fla. 2020).↩
Complaint at 1, Nicklaus Companies LLC v. PowerPro Sports LLC, 9:20-cv-80052 (S.D. Fla. 2020).↩
Id. at 5-8.↩
Id. at 6-8.↩
Id. at 4.↩
Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953), cert. denied, 346 U.S. 816 (1953).↩
Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 835 (6th Cir. 1983), aff’d, 810 F.2d 104 (6th Cir. 1987).↩
Unauthorized publication of name or likeness, FL ST § 540.08.↩
Mike LaSusa, Jack Nicklaus Sues Golf Device Maker Over Trademark Use, Law360 (Jan. 16, 2020, 9:38 PM), https://www-law360-com.fls.idm.oclc.org/articles/1235373/jack-nicklaus-sues-golf-device-maker-over-trademark-use.↩
Brian M. Rowland, An Athlete’s Right of Publicity, 76-Nov. Fla. B.J. 45 (2002).↩
Joint Motion to Approve Settlement, Nicklaus Companies LLC v. PowerPro Sports LLC, 9:20-cv-80052 (S.D. Fla. 2020).↩
Rowland, supra note 13.↩
ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915 (6th Cir. 2003).↩