Apollo 15 commander presents juryworthy arguments in space jewelry case

Space Commerce

During his Apollo 15 moonwalk, astronaut and mission commander Colonel David Scott – one of only a dozen people who have walked on the moon – wore a chronograph (a watch with additional measurement capabilities, such as a stopwatch) given to him by the Bulova company. Colonel Scott held on to the chronograph for decades, until auctioning it off for $1.6 million in 2015.

In 2016, Bulova began marketing a “Lunar Pilot Chronograph” (LPC) as a commemorative piece; the LPC was based on the original chronograph Scott wore during his extraterrestrial stroll. Bulova (now renamed Citizen Watch Co.) began marketing the timepiece, including through sales made by Sterling Jewelers (Sterling does business as Kay Jewelers, of TV commercial fame).

These marketing materials got under Scott’s skin.

Dave? You’re Suing Me, Dave …

The materials included photos of Scott, audio clips of his voice and direct textual references to the colonel in some versions. In response to these representations, Scott filed suit in January 2017 against Citizen and Sterling, alleging in his first amended complaint that the defendants had given a false impression of his endorsement in order to drive up the value and exposure of the LPC. He also claimed that Citizen and Sterling had exploited his unique role as an extraterrestrial explorer to line their own pockets, thereby ruining his carefully cultivated image – Scott claimed to have rarely taken advantage of commercial opportunities related to his star-farer status.

Scott charged the two defendants with common-law invasion of right of publicity, common-law invasion of right of privacy, violation of the California Civil Code, false advertising under the Lanham Act, false designation of origin/description, negligence, and intentional and negligent infliction of emotional distress.

Sterling and Citizen moved to dismiss the case in two separately written motions the court addressed simultaneously in an April 2018 order.

The Takeaway

The heart of the court’s order was simple: There were real factual disputes about the use of the colonel’s likeness, so summary judgment on the claims related to that use were denied.

According to the order, the defendants tried to undercut Scott’s misappropriation claims on several fronts – including that the use of his likeness was incidental and that it was protected under the First Amendment as a matter of public interest.

The court dismissed each defense as grounds for credible exploration by a jury. Scott’s identity, the court maintained, could be considered essential to the marketing of the piece, based on the materials and company communications. As to the historical claims, the court held that the “defendants did not sell an informational piece of media – fact-based trading cards, a newspaper, or a documentary – about Apollo 15 or space exploration. The commercial product is a watch.”

The court went on to deny all of the defendant’s motions, with one exception: emotional distress. Waxing science-fictiony, the court did away with the negligent and intentional emotional distress claims. “Even viewed in the light most favorable to Scott, this evidence is a parsec away from describing distress that no reasonable person can be expected to endure.”

Indeed, the judge seemed to be having fun with his order. In reference to Scott’s negligence claim, he wrote, “While the Court remains perplexed why Scott insists on pursuing a claim that adds nothing to the case, this supernovic white dwarf star of a claim burns on.”