Posts by Matt Falley

At Least One Girl Didn’t Want to Grow Up to Be Barbie

Now listen to my story ‘bout an actress named Donna.

In case you don’t recall The Beverly Hillbillies (read: are under the age of 40), the series (which ran on CBS from 1962 to 1971, and which has enjoyed a long life in syndication) followed the Clampett family, a group of poor yokels who strike it rich after accidentally discovering oil (“Texas tea”) on their generically Southern swamp, move to Beverly Hills, and inexplicably continue to drive around in a jalopy and dress like extras from The Grapes of Wrath. One of the show’s highlights was buxom, come-hither Clampett daughter Elly May, played by an actress named Donna Douglas, whose principal non-Elly May-related claim to fame is some obscure on-set philosophizing with Elvis during the shooting of Frankie and Johnny. (And one of its lowlights was a tragic 1993 attempt at a feature film — with Playboy model and Baywatch babe Erika Eleniak reprising the role of Elly May — which garnered such rave reviews as “Unbearable,” “Was this really necessary?” and “Four writers worked on the script, and they all should hang their heads in shame.”)

Last week, Douglas sued Mattel in federal court in Baton Rouge, Louisiana over the toymaker’s recent release of an “Elly May” Barbie, asserting claims for false endorsement under the Lanham Act, violation of the Louisiana right of publicity statute, common law misappropriation, and unjust enrichment. In her complaint, Douglas asserts that the packaging and publicity for the Elly May Barbie use Douglas’s photograph and name, and that the doll itself copies Douglas’s “distinctive attributes in the portrayal of the Elly May character.” Douglas also claims that she never endorsed the doll or gave Mattel permission to use her name or likeness to promote sales of the Elly May Barbie. As Elly May herself might say: “Well, come on, baby. Let’s wrassle.”

Aside from raising questions about Mattel’s marketing strategy here — I’m guessing this is a “collector’s item,” because have any adolescent girls ever even heard of The Beverly Hillbillies? — Douglas’s lawsuit highlights a potential collision between the right of publicity and the rights granted to copyright owners. Continue reading the full story . . . »


Who Should Be More Upset, the Alien or the Predator?

While buying a present for my son recently at a local surf-and-skate shop, I decided to check out the current crop of skateboard decks. For those not into skating (or who don’t have kids into skating), the underside of boards — you know, the part that no one will ever see if you are actually riding the board successfully — have striking graphics that are a big part of why you choose, and how much you pay for, a particular board. (Well that makes perfect sense — you’re welcome, fellow confused parents.)

One deck immediately stood out: a drawing of E.T. and Michael Jackson in an embrace, below the caption “Alien vs. Predator.”

The board is pretty hilarious, but also risky. Because I am a lawyer, and because lawyers must check their unfettered-by-legal-obsession senses of humor at the law school gate, I couldn’t help thinking about numerous potential legal claims that several plaintiffs might be able to bring. Continue reading the full story . . . »