Gia M. Prima v. Darden Restaurants, d/b/a Olive Garden Restaurant, and Grey Advertising, United States District Court, District of New Jersey, Civil Action No. 99-1637 (GEB), January 12, 2000 [78 F.Supp.2d 337])
In this case, we instituted suit on behalf of our client, Gia Prima, individually and as beneficiary of the Estate of Louis Prima, against Darden Restaurants d/b/a Olive Garden Restaurant, and Grey Advertising, alleging that an Olive Garden commercial produced by Grey Advertising for Darden Restaurants wrongfully imitated Louis Prima's voice and singing style. The particular Olive Garden commercial at issue was entitled "Aunt Marie" and included as background music a singer singing one of Louis Prima's most popular songs, "Oh Marie." In the Complaint, we alleged on behalf of Mrs. Prima, among other things, that the defendants' use in their commercial of a singing voice that unmistakably imitated Louis Prima's voice, singing style and manner of presentation including his style of musical arrangement (i) violated Mrs. Prima's New Jersey common law right of publicity, (ii) violated the Lanham Act, and (iii) tortiously interfered with Mrs. Prima's prospective economic advantage. Prior to discovery, the defendants filed a motion for judgment on the pleadings or, in the alternative, for summary judgment, contending that their use of Louis Prima's persona was de minimis, Mrs. Prima's rights in Louis Prima's voice are minimal, Louisiana law should be applied and Mrs. Prima does not have a right under that law in Louis Prima's persona and that Mrs. Prima's common law claims are preempted by the Copyright Act.
We defeated the defendants' motion by successfully arguing to the Court that the law of Mrs. Prima's domicile, i.e., New Jersey, should be applied in determining Mrs. Prima's rights in Louis Prima's persona. Applying New Jersey law, the Court held that Mrs. Prima had asserted a valid cause of action for infringement of her right of publicity, reasoning that New Jersey recognizes a common law right of publicity and that such right under New Jersey law is a property right that is descendible to the holder's estate. The Court further rejected the defendants' claim that their use of a sound-alike of Louis Prima was de minimis and that Mrs. Prima's rights were somehow preempted by the Copyright Act. As a result, the Court permitted the lawsuit to proceed.
