Move Over Vanna White, Here Comes Marion Barry’s Kidney

By: Intellectual Property Group

In 2008, former Mayor of Washington, D.C., and then council member Marion Barry became ill with a kidney disease. To survive the illness, Mr. Barry required a kidney transplant, and one of his friends, Ms. Kim Dickens, came to his aid and donated one of her kidneys. Although the transplant helped Mr. Barry survive for several more years, he passed away in November 2014. Ironically, Mr. Barry’s widow is now suing Ms. Dickens.

In a lawsuit filed by Cora Masters Barry against Kim Dickens, Mrs. Barry alleges that Ms. Dickens has unlawfully used her late husband’s celebrity identity in order to promote the “Barry Dickens Kidney Foundation,” a charity formed by Ms. Dickens. According to the website of the Barry Dickens Kidney Foundation, Marion Barry played a role in the formation of that group, and the website even features photographs of Mr. Barry along with a detailed story of how Ms. Dickens came to donate one of her kidneys to Mr. Barry.

Mrs. Barry’s claims against the Foundation are not without legal precedent. In 1993, Wheel of Fortune hostess Vanna White sued Samsung Electronics of America in connection with a television ad which depicted a robotic version of Ms. White to promote sales of Samsung’s video cassette recorder. Ruling in favor of Ms. White, the Court of Appeal determined that television and other media create “marketable celebrity identity value,” and a celebrity has an exclusive right to exploit this value by prohibiting unauthorized commercial exploitation of their identity.

The case brought on behalf of Mr. Barry’s estate may represent a new application of the holding in White v. Samsung Electronics. Although the Foundation obviously is using Mr. Barry’s “celebrity” image, there are several distinct differences between Vanna White and Mr. Barry as well as the circumstances in which each person’s image is used.  First, Vanna White is a somewhat typical celebrity who gained fame in connection with a popular television show, whereas Mr. Barry was a public figure, a politician who gained fame for his illustrious acts while in office and his opinions on matters of public concern. Additionally, as detailed in the appellate court’s holding, Samsung’s use of Ms. White’s celebrity identity was purely for commercial gain, while the Foundation’s use of Mr. Barry’s celebrity image is to advance a nonprofit organization’s goal to promote one of the more generous and merciful gifts one person could give another. As a result, the court first must determine if Mr. Barry’s name and image enjoy any “marketable celebrity identity value.” Even if an identifiable “marketable celebrity identity” exists in connection with Mr. Barry, the court also must consider whether or not such celebrity identity can be protected where it arises almost entirely from acts performed while serving in office. Although Ms. Dickens’ act of donating one of her kidneys to Mr. Barry is a gracious and laudable action, absent an express agreement allowing her to do so, it seems unlikely that Ms. Dickens’ kidney purchased the right to use Mr. Barry’s name and likeness.