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<i>Soul Men</i> Ruling Shows Shift To Transformative Use Test

By Keola R. Whittaker

Celebrities often turn to the Lanham Act and state right of publicity laws to protect against exploitation of their name, image or voice in connection with the promotion of products or services. The U.S. Court of Appeals for the Sixth Circuit recently considered both Lanham Act and right of publicity claims in an action that pitted a Grammy winning musical artist against a major motion picture studio over the alleged use of the musician's likeness in a movie. Moore v. Weinstein Company LLC, 12-5715 (6th Cir. 2013). The Moore decision demonstrates how courts are increasingly adopting different balancing tests to resolve the tension between the First Amendment right of freedom of expression and the rights of celebrities to prevent unauthorized use of their likeness.

The litigation was brought by musical artist Sam Moore, of Sam and Dave fame, who claimed that with film Soul Men, starring Samuel L. Jackson and Bernie Mac, the Weinstein Company and others misappropriated Moore's image and certain unregistered trademarks.

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