July 03, 2012 10:40am PT by Eriq Gardner
Disney Sues Horse-Racing Announcer's Estate Over 'Secretariat'
Walt Disney Pictures and Buena Vista Home Entertainment are looking to protect the 2010 film Secretariat from claims from the estate of the horse-racing announcer who called the race where the legendary horse won the 1973 Triple Crown.
Disney has filed a lawsuit in New York that seeks a declaratory judgment that its film doesn't violate the publicity rights of fomer CBS track announcer Charles "Chic" Anderson, who died in 1979. According to the studio, his heirs have spent two years since the film came out, arguing that Anderson's voice and/or words were used in the film without authorization.
Different U.S. states have varying laws in regards to an individual's publicity rights. The most generous (in Indiana) confers protections on an individual’s “name, voice, signature, photograph, image, likeness, distinctive appearance, gestures or mannerisms" and several celebrities including Bette Midler and Tom Waits have prevailed in past claims that the use of sound-alike impersonator violated their publicity rights.
New York's publicity rights are meager by comparison, so it's unsurprising to see Disney choose that forum to adjudicate a dispute concerning their alleged use of Anderson's horse-racing "calls" during Secratariat's races.
Disney says that Anderson's voice was not used in Secretariat. The defendants couldn't be reached for comment, but from the looks of the complaint, it appears as though they might be prepared to argue that there should be protection anyway since the races were originally called by him. No word on whether the film actually used Anderson's words, but the plaintiffs add that the film is entitled to First Amendment protection as an expressive work.
Anderson's family is also alleging that the DVD and Blu-Ray included bonus materials that included historical footage.
But Disney and Buena Vista say the footage was properly licensed from CBS Broadcasting and any publicity rights or copyrights belonged to CBS as part of a work-for-hire agreement. Additionally, because Anderson was allegedly domiciled in New York at the time of his death, the plaintiffs say he can't confer publicity rights to his family.
Although this might seem like a strange case, this type of dispute is not unprecedented.
For example, in 2008, the 3rd Circuit Court of Appeals heard a case involving the estate of John Facenda, who was the narrator of many legendary NFL Films documentaries, suing over the use of small portions of his voice-over work in a TV special about the making of the Madden NFL football game.
The appellate circuit ruled that the program was commercial speech rather than artistic expression and said that Facenda's contract did not waive the right to bring a claim under the Lanham Act for false endorsement. The judges also considered whether the NFL's copyright preempted Facenda's publicity rights claims and determined it hadn't.
But the appellate circuit cautioned, "Despite our holding, we emphasize that courts must circumscribe the right of publicity so that musicians, actors, and other voice artists do not get a right that extends beyond commercial advertisements to other works of artistic expression."
After the case was remanded back to a lower court, the parties settled.