Legal News

Naked Cowboy Rides Off With a (Partial) Win

By Dan Slater

The Naked Cowboy lawsuit, which, when filed four months ago seemed frivolous to some, has partially survived a motion to dismiss.

Back in February, Robert Burck — a/k/a the Naked Cowboy — sued Mars candy company and Gerdeman, a branding company, for $6 million for dressing an animated M&M in Burck’s signature outfit and broadcasting it on a video billboard right smack in the middle of Burck’s turf: Times Square. (For those LB’ers unfamiliar with Burck’s shtick, he’s a guitar-strumming street-singer in Times Square whose uniform is limited to cowboy boots, a hat, and a pair of briefs. Here’s his Web site.)

Today, SDNY judge Denny Chin granted the defendants’ motion to dismiss with respect to Burck’s right to privacy claim (insert ironic statement here), ruling that the New York statute “protects the name, portrait, or picture of a ‘living person,’ not a character created or a role performed by a living person.” However, Judge Chin denied the motion to dismiss Burck’s false endorsement claim, “for he plausibly alleges that consumers seeing defendants’ advertisements would conclude — incorrectly — that he had endorsed M&M candy.” (The offending billboard ad was taken down shortly after Burck filed his suit.)

Here’s Judge Chin’s opinion.

What’s next? The lawyers will meet for a pre-trial conference on July 11. Representing Burck is Scott Rothman from Halberstadt Curley and Kevin Mulhearn, a solo practitioner. On the defendants’ side are Arent Fox’s Joseph Price, Ross Panko, Leslie Mitchell and Sarah Marks

Full post as published by Law Blog - WSJ.com on June 23, 2008 (boomark / email).