A federal court has denied summary judgment in Charles E. "Chuck" Yeager's suit against Cingular Wireless in which the legendary pilot claims the company used his historic achievement as a pilot for commercial purposes in violation of the Lanham Act and California's common law right to privacy and right to control publicity and likeness. Yeager v. Cingular Wireless, LLC, No. 2:07-cv-02517 (E.D. Cal. Dec. 7, 2009). Over 60 years ago, Yeager, a retired U.S. Army Air Corps pilot, broke the sound barrier and achieved the elusive airspeed of "Mach 1." Last year, in promoting its emergency preparedness equipment, Cingular published a statement on PR Newswire and its own Web site using Yeager's name and referring to his historic flight. Id. at *2-3. The publication did not include a photo of Yeager, mentioned his name only in the text, rather than in a heading, and did not state that Yeager endorses any products. Id.
In seeking summary judgment, Cingular raised the First Amendment to protect the disputed statement as non-commercial speech that contains newsworthy matter. Id. The court, however, identified the contested speech as categorically commercial, noting the use of Yeager's name throughout the publication, and finding the central theme of the publication to be promotion of Cingular's services, with the overall purpose of the publication to create a positive association with Cingular's brand. Id. at *10-11. In denying summary judgment, the court recognized California's common law right to control commercial use of a person's identity when that use has commercial value. Id. at *7. The court also denied Cingular's summary judgment motion on the Lanham Act claims, finding "[w]here a celebrity's name is used in an advertisement, there are triable issues of fact regarding whether such use implies endorsement." Id. at *23. Although the publication did not directly "propose any commercial transactions or offer any products or services," the court found that the publication promoted Cingular's services indirectly and that the First Amendment could not protect this form of speech on summary judgment. Now, that's a barrier that's hard to break.