Henley. v. Dillard Department Stores

Henley (the plaintiff) was a popular rock musician and former member of The Eagles. Dillard Department Stores (the defendant) ran an advertisement for henley-style shirts that featured a play on words using the plaintiff’s name. The advertisement showed a man wearing a henley-style shirt with the caption, “This is Don’s henley.” The plaintiff sued, alleging that the defendant infringed on his right of publicity. At trial, the plaintiff presented survey evidence indicating that 15% of respondents believed that the plaintiff had endorsed the product. In deposition testimony, the advertisement’s designer stated that the advertisement was meant to be a play on words referencing the plaintiff’s name and that she used the plaintiff’s name to create an eye-catching advertisement. A vice-president of the defendant testified that the words “Don’s henley” added no commercial value to the advertisement. The defendant argued that the reference to the plaintiff’s name was only incidental to the advertisement, which focused on the product itself. The defendant also argued that the advertisement provided no actual commercial benefit, because the defendant did not increase sales adequately to cover the cost of the ad campaign. Subsequently, the defendant moved for partial summary judgment on the right of publicity claim.