Absurd “world record” claim isn’t use of actual record-holder’s identity

Martin v. Living Essentials, LLC, 2016 WL 374142, No. 15 C
01647 (N.D. Ill. Feb. 1, 2016)
Ted Martin, who holds the world record for most consecutive
kicks in hacky sack (no knees, no partner) sued for invasion of privacy and
false advertising based on a television commercial in which an actor claims to
have accomplished a series of seemingly impossible feats, including mastering
origami “while beating the record for Hacky Sack,” under the influence of an
energy drink.  The court found that the
ad “is clearly a comedic farce and in no way trades on Martin’s identity.”

The ad, apparently
part of 5-hour ENERGY’s “The Last Five Hours” series, shows an actor claiming
that “in the last 5 hours” he: disproved the theory of relativity; swam the
English Channel and back; found Bigfoot; and mastered origami while beating
“the record for Hacky Sack,” all because he took a 5hE shot.  Mouseprint at the bottom of the screen says, “For
comedic purposes only. Not actual results[,]” and “Not proven to improve
physical performance, dexterity or endurance.” Martin claimed that the hacky
sack statement was a false representation of fact and an appropriation of his
The court first found that the one-year statute of
limitations for right of publicity claims in Illinois barred the claim, given
the complaint’s statement that the ad came out soon after Nov. 16, 2012, and
that the complaint was filed in February 2015.
Even if the claim weren’t time-barred, it couldn’t win.  Martin’s argument was that, by claiming that
the record holder for hacky sack used 5hE to set the record, the ad said that
Marin used 5hE.  Sadly, Illinois law
covers the unauthorized use of “any attribute of an individual.”  But the court nonetheless found that “the
record for Hacky Sack” was far too ambiguous to identify him.  There are many kinds of hacky sack records, and
the ad shows a man kicking two hacky sacks, not one; the Guinness World Record
book lists 14 different records, and the ad doesn’t claim any particular
But all of this misses the more
fundamental point. The Commercial is a joke, a comedic farce. The claims it
makes are not intended to be taken as true—and to the extent that there could
be any doubt on that score, the commercial includes a clear disclaimer advising
the most gullible among us that these are “not actual results.” No one could
watch the Commercial and reasonably conclude that the product spokesman
actually holds “the record for Hacky Sack” ….
And anyway, the actor claimed to have done a number of other
improbable things that didn’t identify Ted Martin. 
Martin neither claims to have done
these other things nor explains why anyone would believe that, in addition to
unrivaled skill at keeping a footbag aloft, he possesses genius surpassing that
of Einstein, twice the endurance of Diana Nyad, and hunting skills so refined
that he is able to locate even mythical creatures. The Commercial’s implication
is to the contrary: whoever this remarkable human may be, he is someone other
than Ted Martin (or Einstein, Nyad, or the biggest of big-game hunters, all of
whom the Commercial portrays as being left in the wake of anyone who might
consume a dose of 5HE).
Thus, the court cautioned, “defectum humoris non curat
lex—the law does not reward humorlessness.” 
No reasonable person could find a use of Martin’s identity.  (Query: could a reasonable person find a use
of Einstein’s identity?)
The Lanham Act claim failed for the same reason: it was a
joke. Also, without any use of Martin’s identity, Martin failed the Lexmark test for statutory standing,
though this was a non-jurisdictional argument that could be, and was, waived by
defendant’s failure to raise it.
Living Essentials argued that its claim was ambiguous
because it wasn’t clear which hacky sack record the actor claimed to have
broken.  The court rejected this claim,
and rightly so: whatever records there were, the actor had broken none of them;
the claim was literally false in that sense. 
But there was no way that a reasonable person could take that false
claim literally; it was a humorous exaggeration posing no risk of consumer
deception, “better described as farce than mere puffery.”  Martin thus couldn’t plausibly allege
consumer confusion that injured him.  He
didn’t identify lost endorsement opportunities (he had no such deals) and his
emotional angst didn’t count.  Even if
his record had commercial value, it would be among “Hacky Sack cognoscenti,”
but Martin didn’t allege that those people would be misled.

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2 Responses to Absurd “world record” claim isn’t use of actual record-holder’s identity

  1. Joshua Kahn says:

    I was curious about at what point a farcical reference to someone’s accomplishment/defining feature without permission becomes specific enough that it treads on legal ground? For example, what if I were the fastest runner in the world and 5hour energy claimed their product let’s you run faster than “the fastest runner in the world.” Or what if I were the tallest man in the world and they claim in jest something like “even the tallest man loves 5hour energy.” Thanks!

    • rtushnet says:

      It’s a good question; if the person were clearly identifiable from the information, then the ridiculous logic of the modern right of publicity would suggest yes, just like a blonde robot in a wig next to the Wheel of Fortune letters evokes Vanna White.

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