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Disney Sues Dead Horse Racing Announcer's Estate Over Right of Publicity, Copyright Assertions

By William MacDonald*

On June 29, 2012 Walt Disney Pictures and Buena Vista Home Entertainment, Inc. (collectively, "Disney") filed a declaratory judgment action against the heirs and estate of the late CBS horse racing announcer Charles (Chic) Anderson.

On June 29, 2012 Walt Disney Pictures and Buena Vista Home Entertainment, Inc. (collectively, "Disney") filed a declaratory judgment action against the heirs and estate of the late CBS horse racing announcer Charles (Chic) Anderson. Anderson was the announcer who "called" the 1973 Belmont Stakes (among many other races) when famed racehorse Secretariat clinched the Triple Crown, taking the final leg by 31 lengths. Disney's lawsuit, filed in the Eastern District of New York, seeks a declaration that Disney's 2010 motion picture Secretariat and the additional bonus materials included with the home entertainment release of the film, which contain video clips of races including Anderson's original calls, do not infringe Anderson's publicity, copyright, or other rights.

Disney alleges that over the course of the past two years Anderson's heirs have argued that Disney did not have the right to use Anderson's voice in Secretariat or in the bonus materials included with the home entertainment release of the film. Disney alleges that Anderson's heirs have asserted multiple bases of liability against Disney, including under right of publicity and copyright laws. Disney alleges, however, that (i) Anderson's voice was not used in Secretariat, and (ii) the video clips of races including Anderson's original calls were used pursuant to a license with the copyright owner. Accordingly, Disney argues, Disney did not violate Anderson's rights. Nevertheless, Disney alleges that Anderson's heirs' "demands and accusations have escalated to a level requiring intervention by this Court."

Disney alleges it is entitled to a declaratory judgment in its favor for a number of reasons. Disney alleges that Anderson's heirs have no claim under New York's statutory right of publicity based on depictions of races in Secretariat not only because Anderson's voice was not used in the film, but also because, prior to the release of Secretariat, Anderson died a domiciliary of New York thus extinguishing any publicity rights he may have had (and this, according to Disney, is also true with respect to the home entertainment release's bonus materials). Additionally, Disney alleges that Anderson's heirs have no viable claims under copyright law based on the video clips included in the home entertainment release's bonus materials because, among other things, the clips were used pursuant to a license from the copyright owner and Mr. Anderson's services constituted a work made for hire. Finally, Disney alleges that Anderson's heirs have no other claims against Disney because the motion picture Secretariat and the home release's bonus materials are entitled to First Amendment protection.

Given New York's relatively narrow view of the right of publicity, Disney's arguments that Anderson's publicity rights were not violated may be received more readily. We'll continue to follow the case.

*Mr. MacDonald was formerly a lawyer with Olshan's IP Department.

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