PUBLISH 

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________________

No. 96-6809

_______________________

D. C. Docket No. CV95-P-1555-S

ELISA ALLISON, individually and as the

executrix of the Estate of Clifford

Allison; OREL HERSHISHER

Plaintiffs-Appellants,

versus

VINTAGE SPORTS PLAQUES,

 

Defendant,

HMA INVESTMENTS, INC.,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(March 18, 1998)

Before TJOFLAT and HULL, Circuit Judges, and KRAVITCH, Senior

Circuit Judge.

KRAVITCH, Senior Circuit Judge:

The issue presented in this case is whether the “first-sale
2

doctrine,” a well-established limitation on intellectual property

rights, applies to the common-law right of publicity. We hold that

it does. Accordingly, we affirm the district court, which granted

summary judgment to the defendant. 

I.

Elisa Allison (“Allison”) is the widow of Clifford Allison, a

well-known race-car driver who had a licensing agreement with Maxx

Race Cards (“MAXX”) whereby Maxx would manufacture and market

trading cards bearing his likeness in exchange for a royalty of 18%

of sales receipts, which is now paid to his estate. Orel

Hershisher (“Hershisher”) is a well-known professional baseball

player who has a licensing agreement with the Major League Baseball

Players Association (“MLBPA”) that grants MLBPA the right to use

and license his name and image for commercial purposes in exchange

for a pro rata share of all revenues derived therefrom. MLBPA has

licensed Hershisher’s name and image to various trading card

companies, which have manufactured and marketed cards bearing his

image. 

Vintage Sports Plaques (“Vintage”) purchases trading cards

from licensed card manufacturers and distributors and, without

altering the cards in any way, frames them by mounting individual

cards between a transparent acrylic sheet and a wood board.

Vintage then labels each plaque with an identification plate
1 The named defendants were Vintage and HMA Investments, which

does business as Vintage.

3

bearing the name of the player or team represented. In addition to

the mounted trading card, some of the plaques feature a clock with

a sports motif. Vintage markets each plaque as a “Limited Edition”

and an “Authentic Collectible.” Vintage is not a party to any

licensing agreement that grants it the right to use the appellants’

names or likenesses for commercial purposes and has never paid a

royalty or commission to the appellants for its use of their names

or images. Appellants presumably have received, however, pursuant

to their respective licensing agreements, royalties from the card

manufacturers and distributors for the initial sale of the cards to

Vintage.

Allison filed suit against Vintage in Alabama state court

alleging infringement of licensure rights, violation of the right

of publicity, and conspiracy,1 and Vintage removed the action to

the United States District Court for the Northern District of

Alabama on the basis of diversity of citizenship. Allison then

filed an amended complaint seeking to join Hershisher as a

plaintiff and to certify a plaintiff class. The amended complaint

alleged violation of the right of publicity and conspiracy and

included a prayer for injunctive and declaratory relief. Vintage

moved for summary judgment, and the district court, concluding that

“it would be provident to consider [the motion] to determine if a
2 Order Granting Summary Judgment (“Order”) at 1.

3

 Id. at 7.

4 Id. at 5.

5

 Id. at 8-9. The district court also granted summary judgment

on the conspiracy claim because the only parties originally named

by appellants in the complaint — HMA Investments and Vintage —

were a single entity and thus were incapable of conspiracy. 

Appellants have not appealed this decision.

4

legally cognizable claim is stated in the amended complaint . . .

[b]efore considering the issue of class certification,”2 granted

the motion. The district court first decided that although

appellants established a prima facie case of violation of the right

of publicity, the first-sale doctrine operates as a defense in such

actions. The district court then concluded that because “[t]his is

more appropriately classified as a case of an entrepreneur

repackaging or displaying the trading cards in a more attractive

way to consumers,”3 rather than a case of an opportunist “using

Plaintiffs’ names and likenesses to sell frames and clocks,”4

Vintage was entitled to summary judgment on the right of publicity

claim.5

II.

We review grants of summary judgment de novo, applying the

same legal standard as the district court. See Gordon v. Cochran,

116 F.3d 1438, 1439 (11th Cir. 1997). Summary judgment is

appropriate if, after examining the entire record, the court
6 The district court did not address choice of law in its Order,

but rather seemed to assume that Alabama law applied. A district

court must apply the choice-of-law rules of the state in which it

sits. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61

S. Ct. 1020 (1941). Alabama uses a vested rights approach in

determining the applicable law in tort actions, an approach that

ordinarily results in application of the law of the state where the

injury occurred. See Fitts v. Minn. Mining & Mfg. Co., 581 So.2d

819, 820 (Ala. 1991) (“Lex loci delicti has been the rule in

Alabama for almost 100 years. Under this principle, an Alabama

court will determine the substantive rights of an injured party

according to the law of the state where the injury occurred.”);

accord Etheredge v. Genie Indus., Inc., 632 So.2d 1324, 1325 (Ala.

1994). Because Alabama courts have not addressed choice-of-law

issues in cases similar to the one before us, whether denominated

as right of publicity actions or commercial appropriation invasion

of privacy actions, see infra, it is difficult to determine what

choice-of-law principles an Alabama state court would apply in this

case. For example, it is not clear whether the locus of the injury

would be the location of the plaintiff or instead the situs of the

allegedly tortious conduct. To complicate matters, the right of

publicity has been treated in some jurisdictions as a property

right, and some courts accordingly have used choice-of-law rules

applicable to personal property. See Acme Circus Operating Co.,

Inc., v. Kuperstock, 711 F.2d 1538, 1541 (11th Cir. 1983) (applying

California choice-of-law principles to determine “whether or not an

intangible personal property right, the right of publicity,

survives the death of the individual in whom the right arose”); see

5

concludes that there is no genuine issue of material fact. See

Fed. R. Civ. P. 56(c).

A.

As a preliminary matter, we note that as a court sitting in

diversity we are bound to apply state substantive law. See Erie

R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817 (1938). In

reaching its conclusions, the district court purported to apply

Alabama law, and we do the same.6 The district court cited only one
generally J. Thomas McCarthy, The Rights of Publicity and Privacy

§ 11.3 (1997). Because Allison resides in Alabama, treatment of

right of publicity claims as property actions likely would result

in application of Alabama substantive law. Although there are

certain ambiguities, we nevertheless conclude that an Alabama court

would apply Alabama law to resolve this case. 

6

Alabama case, Birmingham Broadcasting Co. v. Bell, 68 So.2d 314

(Ala. 1953), for the proposition that Alabama has recognized a

cause of action for violation of the right of publicity. In Bell,

the court held that the only cause of action available to a wellknown radio announcer against a broadcaster who had used the

announcer’s name without his permission was for “violation of his

privacy.” Id. at 319. Noting that the earlier case of Smith v.

Doss, 37 So.2d 118 (Ala. 1948), impliedly had recognized a cause of

action for violation of the right of privacy, the court held that

the “privacy of a public personage may not be lawfully invaded by

the use of his name or picture for commercial purposes without his

consent, not incidental to an occurrence of legitimate news value.”

Bell, 68 So.2d at 319. Although it does not appear that Alabama

courts ever have recognized a right denominated as “publicity,” we

conclude that the Alabama right of privacy contains an analogous

right.

Alabama, like most states, has recognized that 

[T]he invasion of privacy tort consists of four distinct

wrongs: 1) the intrusion upon the plaintiff’s physical

solitude or seclusion; 2) publicity which violates the

ordinary decencies; 3) putting the plaintiff in a false, but

not necessarily defamatory, position in the public eye; and 4)
7

the appropriation of some element of the plaintiff’s

personality for a commercial use.

Phillips v. Smalley Maintenance Services, Inc., 435 So.2d 705, 708

(Ala. 1983); cf. Smith, 37 So.2d at 120 (defining the common-law

right of privacy as “the right of a person to be free from

unwarranted publicity or the unwarranted appropriation or

exploitation of one’s personality, the publicizing of one’s private

affairs with which the public has no legitimate concern, or the

wrongful intrusion into one’s private activities in such manner as

to outrage or cause mental suffering, shame or humiliation to a

person of ordinary sensibilities”). Alabama has recognized the

commercial appropriation invasion of privacy tort, although the

cause of action has been addressed directly by Alabama’s highest

court only twice. See Schifano v. Greene County Greyhound Park,

Inc., 624 So.2d 178 (Ala. 1993); Bell, supra. In Schifano, the

Alabama Supreme Court held that the plaintiffs, who were depicted

in a group photograph that appeared without their consent in an

advertisement created by the defendant, could not prevail on a

claim of commercial misappropriation of their likenesses. Quoting

the Restatement (Second) of Torts § 652C, the court noted that

“[i]t is only when the publicity is given for the purpose of

appropriating to the defendant’s benefit the commercial or other

values associated with the name or the likeness that the right of

privacy is invaded.” Schifano, 624 So.2d at 181. Because there
8

was “no unique quality or value in the [plaintiffs’] likenesses

that would result in commercial profit to the [defendant] simply

from using a photograph that included them,” id., the court

concluded that the plaintiffs could not prevail. See also KyserSmith v. Upscale Communications, Inc., 873 F. Supp. 1519, 1525-27

(M.D. Ala. 1995) (denying summary judgment to defendant on

commercial appropriation claim under Alabama law because plaintiff

established genuine issue of the value of her likeness and of the

defendant’s commercial benefit from the exploitation of that

likeness); cf. J.C. v. WALA-TV, Inc, 675 So.2d 360 (Ala.

1996)(recognizing “legitimate news interests exception” to

commercial appropriation tort liability); Doe v. Roe, 638 So.2d 826

(Ala. 1994) (same).

The commercial appropriation right of privacy is similar, but

not identical, to the right of publicity recognized in a number of

jurisdictions. Whereas judicial acceptance of the four distinct

torts that comprise the general right of privacy is “universal,” J.

Thomas McCarthy, The Rights of Publicity and Privacy § 1.5[E]

(1997), the right of publicity has been recognized in only sixteen

states, id. at § 6.1[B]. One commentator has summarized the

difference between the right of publicity and the commercialappropriation prong of the right of privacy this way:

The appropriation type of invasion of privacy, like all

privacy rights, centers on damage to human dignity. Damages

are usually measured by “mental distress” — some bruising of
9

the human psyche. On the other hand, the right of publicity

relates to commercial damage to the business value of human

identity. Put simplistically, while infringement of the right

of publicity looks to an injury to the pocketbook, an invasion

of appropriation privacy looks to an injury to the psyche.

J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition

§ 28:6 (1997); see Haelan Lab., Inc. v. Topps Chewing Gum, Inc.,

202 F.2d 866, 868 (2d Cir. 1953) (“[M]any prominent persons

(especially actors and ball-players), far from having their

feelings bruised through public exposure of their likenesses, would

feel sorely deprived if they no longer received money for

authorizing advertisements, popularizing their countenances,

displayed in newspapers, magazines, busses, trains, and subways.”).

Alabama has not denominated the interest protected by its

commercial appropriation invasion of privacy tort as the right of

publicity. See McCarthy, Rights of Privacy and Publicity at §

6.1[B] (noting that sixteen states judicially or statutorily have

recognized the right of publicity, denominated as such, and that an

additional nine states have statutes that cover most aspects of the

right of publicity). We read Alabama’s commercial appropriation

privacy right, however, to represent the same interests and address

the same harms as does the right of publicity as customarily

defined. Indeed, the elements of Alabama’s commercial appropriation

invasion of privacy tort, which bases liability on commercial,

rather than psychological, interests, cf. McCarthy, McCarthy on
7 Because we conclude that there is no significant difference

between Alabama’s commercial appropriation privacy tort and the

right of publicity, we use the terms interchangeably during the

remainder of the opinion.

10

Trademarks and Unfair Competition § 28:6, do not differ

significantly from those of the tort of violation of the right of

publicity. Compare Kyser-Smith v. Upscale Communications, Inc.,

873 F. Supp. 1519, 1525-27 (M.D. Ala. 1995), with Montana v. San

Jose Mercury News, Inc., 34 Cal. App. 4th 790, 793, 40 Cal. Rptr.

2d 639, 640 (Cal. Ct. App. 1995). As a technical matter, then, we

construe appellants’ claim as one sounding in commercial

appropriation, rather than in publicity, although we conclude that

the distinction is largely semantic.7

Although the Alabama Supreme Court has addressed the tort of

commercial appropriation only twice and thus has provided us with

little guidance in determining the contours of the cause of action,

we read Alabama law to permit a cause of action for invasion of

privacy when the defendant appropriates without consent the

“plaintiff’s name or likeness to advertise the defendant’s business

or product, or for some other similar commercial purpose.” KyserSmith, 873 F. Supp. at 1525. The plaintiff must demonstrate that

there is a “unique quality or value in [his] likeness[]” that, if

appropriated, would result in “commercial profit” to the defendant.

Schifano, 624 So.2d at 181; cf. Montana v. San Jose Mercury News,

Inc., 34 Cal. App. 4th 790, 793, 40 Cal. Rptr. 2d 639, 640 (Cal. Ct.
11

App. 1995) (“A cause of action for common law misappropriation of

a plaintiff's name or likeness may be pled by alleging: (1) the

defendant's use of the plaintiff's identity; (2) the appropriation

of plaintiff's name or likeness to defendant's advantage,

commercially or otherwise; (3) lack of consent; and (4) resulting

injury.”) (internal quotation omitted).

B.

The district court concluded that the first-sale doctrine

precludes appellants from holding Vintage liable in tort. The

first-sale doctrine provides that once the holder of an

intellectual property right “consents to the sale of particular

copies . . . of his work, he may not thereafter exercise the

distribution right with respect to such copies . . . .” M. Nimmer

and D. Nimmer, Nimmer on Copyright § 8.12[B][1] (1997). Any other

rule would extend the monopoly created by the intellectual property

right so far as to permit control by the right-holder over the

disposition of lawfully obtained tangible personal property.

Therefore, “the policy favoring [an intellectual property right

monopoly] . . . gives way to the policy opposing restraints of

trade and restraints on alienation.” Id. at § 8.12[A]. The firstsale doctrine limits the three principal forms of intellectual

property rights: (1) copyright, see 17 U.S.C. § 109(a) (“[T]he

owner of a particular copy or phonorecord lawfully made under this
8 We note that some states that statutorily have recognized a

right of publicity have codified the first-sale doctrine. See,

e.g., Fla. Stat. Ann. § 540.08(3)(b) (“The provision of this

section [protecting a right of privacy] shall not apply to: . . .

The use of such name, portrait, photograph, or other likeness in

connection with the resale or other distribution of literary,

12

title, or any person authorized by such owner, is entitled, without

the authority of the copyright owner, to sell or otherwise dispose

of the possession of that copy or phonorecord.”); (2) patent, see

Intel Corp. v. ULSI Sys. Tech., Inc., 995 F.2d 1566, 1568 (Fed.

Cir. 1993) (“The law is well settled that an authorized sale of a

patented product places that product beyond the reach of the

patent. The patent owner’s rights with respect to the product end

with its sale, and a purchaser of such a product may use or resell

the product free of the patent.”) (internal cites omitted); and (3)

trademark, see NEC Elec. v. Cal Circuit ABCO, 810 F.2d 1506, 1509

(9th Cir. 1987) (“Once a trademark owner sells his product, the

buyer ordinarily may resell the product under the original mark

without incurring any trademark liability.”) (citing Prestonettes,

Inc. v. Coty, 264 U.S. 359, 368-69, 44 S. Ct. 350, 351-52 (1924)).

Appellants argue that we should not apply the first-sale

doctrine to common-law actions to enforce the right of publicity.

There is virtually no case law in any state addressing the

application of the first-sale doctrine to the right of publicity,

perhaps because the applicability of the doctrine is taken for

granted.8

 The cases cited by appellants do not show that the
musical, or artistic productions or other articles of merchandise

or property whether such person has consented to the use of his or

her name, portrait, photograph, or likeness on or in connection

with the initial sale or distribution thereof . . . .”).

9 Allison Br. at 10.

13

doctrine is inapplicable to publicity actions, but rather address

instances either of unauthorized use of likenesses that never have

been licensed for use, see, e.g., Genesis Publications, Inc. v.

Goss, 437 So.2d 169 (Fla. Dist. Ct. App. 1983), cert. denied, 449

So.2d 264 (Fla. 1984) (upholding jury verdict for plaintiff who,

although consenting to be the subject of a photograph, never

authorized use of that photograph); Brinkley v. Casablancas, 438

N.Y.S.2d 1004 (N.Y. App. Div. 1981) (same), or of use by a licensee

that exceeds the scope of the license, see, e.g., Zim v. Western

Pub. Co., 573 F.2d 1318, 1327 (holding that publisher’s contract

with author allowed use of author’s name on one book, but did not

permit such use on another book, rendering the latter use

tortious).

Appellants argue that the right of publicity differs from

other forms of intellectual property because the former protects

“identity,” whereas the latter protect “a particular photograph or

product.”9 The first-sale doctrine should not apply, they reason,

because a celebrity’s identity continues to travel with the

tangible property in which it is embodied after the first sale. We

find two significant problems with appellants’ argument. First,
14

the distinction that appellants draw between what is protected by

the right of publicity and what is protected by other forms of

intellectual property rights, such as copyright, is not sound.

Copyright law, for example, does not exist merely to protect the

tangible items, such as books and paintings, in which the

underlying expressive material is embodied; rather, it protects as

well the author’s or artist’s particular expression that is

included in the tangible item. The copyright law thus would be

violated not only by directly photocopying a protected work, but

also by publishing language or images that are substantially

similar to that contained in the copyrighted work. See Warren

Publ’g, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1516 n.19 (11th

Cir. 1997) (“The test for infringement of copyrighted works is one

of ‘substantial similarity.’").

Second, and more important in our view, accepting appellants’

argument would have profoundly negative effects on numerous

industries and would grant a monopoly to celebrities over their

identities that would upset the delicate “balance between the

interests of the celebrity and those of the public.” White v.

Samsung Elec. Am., Inc., 989 F.2d 1512, 1515 (9th Cir. 1993)

(Kozinski, J., dissenting from the order rejecting the suggestion

for rehearing en banc). Indeed, a decision by this court not to

apply the first-sale doctrine to right of publicity actions would

render tortious the resale of sports trading cards and memorabilia
15

and thus would have a profound effect on the market for trading

cards, which now supports a multi-billion dollar industry. See

Cardtoons, L.C. v. Major League Baseball Players Ass’n, 868 F.

Supp. 1266, 1274 n.6 (N.D. Okla. 1994) (“The trading card market is

now a $2.007 billion industry.”), aff’d, 95 F.3d 959 (10th Cir.

1996); McCarthy, Rights of Privacy and Publicity at § 7.7[E]; cf.

Major League Baseball Players Ass’n v. Dad’s Kids Corp., 806 F.

Supp. 458, 460 (S.D.N.Y. 1992) (“The fact that an enormous

secondary market exists for baseball cards and baseball card

derivative works leads me to conclude on this record that baseball

players have little if any continuing publicity rights with respect

to the use and reuse of their pictures on cards by subsequent

purchasers and sellers of duly licensed baseball cards following a

perfectly proper first sale into commerce for which the players get

a royalty.”), transferred sub nom. In re Dad’s Kids Corp., (C.D.

Cal. June 30, 1994). Such a holding presumably also would prevent,

for example, framing a magazine advertisement that bears the image

of a celebrity and reselling it as a collector’s item, reselling an

empty cereal box that bears a celebrity’s endorsement, or even

reselling a used poster promoting a professional sports team.

Refusing to apply the first-sale doctrine to the right of publicity

also presumably would prevent a child from selling to his friend a
10 During the period from 1993 to 1996, Hershisher alone received

over $230,000 in royalties from licensing and endorsements. See

R2-24-Tab 2-2.

11 Appellants’ argument that Vintage acted tortiously because

appellants’ licensing arrangements do not authorize Vintage (or any

other third party) to market or appropriate their likenesses lacks

merit in light of our conclusion that the first-sale doctrine

16

baseball card that he had purchased, a consequence that undoubtedly

would be contrary to the policies supporting that right. 

A holding that the first-sale doctrine does limit the right of

publicity, on the other hand, would not eliminate completely a

celebrity’s control over the use of her name or image; the right of

publicity protects against unauthorized use of an image, and a

celebrity would continue to enjoy the right to license the use of

her image in the first instance -- and thus enjoy the power to

determine when, or if, her image will be distributed. Appellants

in this case, for example, have received sizable royalties from the

use of their images on the trading cards at issue,10 images that

could not have been used in the first place without permission.

Because application of the first-sale doctrine to limit the right

of publicity under Alabama law will maintain the appropriate

balance between the rights of celebrities in their identities and

the rights of the public to enjoy those identities, we conclude

that the Alabama Supreme Court would apply the first-sale doctrine

in this case and that the district court properly so applied it.11
applies to the right of publicity. Because the first-sale doctrine

limits appellants’ rights in controlling the use of their

likenesses, Vintage (or any other third party) lawfully could sell

or transfer the tangible property containing appellants’ licensed

images without separately entering a licensing agreement with

appellants.

12 Order at 5.

17

C.

Having concluded that the first-sale doctrine applies to limit

the right of publicity under Alabama law, we turn to the question

of whether the district court correctly granted summary judgment in

favor of Vintage. Appellants cannot prevail under a commercial

appropriation cause of action if Vintage merely resells the trading

cards that bear appellants’ likenesses because the resale of

licensed images falls under the protective scope of the first-sale

doctrine.

The district court correctly observed:

Vintage would probably violate the right of publicity if [it]

attached a trading card to a baseball glove and sold it as “an

official Orel Hershisher glove” or if [it] affixed a Clifford

Allison card onto a model car and sold it as “an official

Clifford Allison car.” Thus, this court must decide if the

Vintage Clocks and plaques are more like reselling the trading

cards or more like using Plaintiffs’ names and likenesses to

sell frames and clocks, similar to selling an Allison car or

a Hershisher glove.12

Because the district court concluded that “Vintage is selling the

trading cards after presenting them in, what some consumers deem to
13 Id. at 8.

14 Id. at 5.

18

be, a more attractive display,”13 and because the first-sale

doctrine permits such resale, the court granted summary judgment on

the right of publicity claim. Appellants contend that the issue of

whether Vintage’s plaques are “more like reselling the trading

cards or more like using Plaintiffs’ names and likenesses to sell

frames and clocks”14 involves questions of material fact that should

not have been resolved at the summary judgment stage. 

The issue before us, then, is whether the district court

properly resolved as a matter of law that Vintage’s plaques merely

are the cards themselves repackaged, rather than products separate

and distinct from the trading cards they incorporate. If they are

the latter, as appellants contend that they are, then arguably

Vintage is selling a product by “commercially exploiting the

likeness[es of appellants] intending to engender profits to their

enterprise,” Wendt v. Host Int’l, Inc., 125 F.3d 806, 811 (9th Cir.

1997), a practice against which the right of publicity seems

clearly to protect.

Appellants cite inapposite cases to support their claim that

the district court resolved a fact question that should have been

left to the jury. In Wendt, the plaintiffs claimed that robotic

figures used in the defendant’s display bore their likenesses and
19

thus that the defendant improperly appropriated their images for

commercial purposes. The district court granted summary judgment

in favor of the defendant, but the court of appeals reversed,

holding that because “[a]ppellants have raised genuine issues of

material fact concerning the degree to which the figures look like

them,” they “have also raised triable issues of fact as to whether

or not appellees sought to appropriate their likenesses for their

own advantage . . . .” Wendt, 125 F.3d at 811. The court had no

occasion to address the first-sale doctrine because the plaintiffs

never had authorized use of their images; because they had created

genuine issues of material fact for all other elements of a cause

of action for right of publicity, the court denied summary judgment

on the ground that the appellants demonstrated a genuine issue as

to whether the defendant actually had used the plaintiff's

identity. In the case before us, by contrast, there is no dispute

that the images used by Vintage in its displays are those of the

appellants; in addition, unlike Wendt, the appellants here have

licensed the use and distribution of the images at the center of

the controversy. The other cases cited by appellants are similarly

inapposite. See Abdul-Jabbar v. General Motors Corp., 85 F.3d 407,

416 (9th Cir. 1996) (concluding that “[w]hether or not Lew Alcindor

‘equals’ Kareem Abdul-Jabbar . . . is a question for the jury”);

White v. Samsung Elec. Am., Inc., 971 F.2d 1395, 1399 (9th Cir.

1992) (reversing summary judgment for defendant because plaintiff
15 Appellants make much of the fact that Vintage markets its

plaques as “Limited Edition[s]” and “Authentic Collectible[s].” 

In our view, however, these designations in no way change the

fundamental nature of the plaques.

20

created genuine issue whether robot that reminded viewers of

plaintiff in defendant’s advertisement amounted to appropriation of

plaintiff’s identity). 

We conclude that the district court properly determined that,

as a matter of law, Vintage merely resells cards that it lawfully

obtains. Cf. Beal v. Paramount Pictures Corp., 20 F.3d 454, 456,

459 (11th Cir. 1994) (stating that “[w]hen called upon to adjudicate

a copyright dispute, a court must compare the works in question,”

and noting that although copyright disputes are “inherent[ly]

subjectiv[e],” “courts have been willing to grant summary judgment

in infringement cases when it is clear that the moving party is

entitled to judgment as a matter of law”). We think it unlikely

that anyone would purchase one of Vintage’s plaques for any reason

other than to obtain a display of the mounted cards themselves.

Although we recognize that the plaques that include a clock pose a

closer case, we conclude that it is unlikely that anyone would

purchase one of the clock plaques simply to obtain a means of

telling time, believing the clock to be, for example, a “Hershisher

Clock” or an “Allison Clock.”15 Because reselling a product that

was lawfully obtained does not give rise to a cause of action for

violation of the right of publicity, we hold that the district
16 Appellants also argue that Vintage violated their right of

publicity merely by using the appellants’ names on the plaques.

Although appellants are correct that unauthorized use of a

celebrity’s name, in contrast to a celebrity’s image, to promote a

product ordinarily constitutes a violation of the right of

publicity, see, e.g., Acme Circus Operating Co., Inc. v.

Kuperstock, 711 F.2d 1538 (11th Cir. 1983) (recognizing that under

California law, unauthorized use of celebrity’s name to endorse

product can violate right of publicity), it does not violate the

right of publicity to use the celebrity’s name to identify the

likeness if the image is lawfully used, see Zim v. Western

Publishing Co., 573 F.2d 1318, 1327 (5th Cir. 1978) (holding that

authorization to publish author’s work provided implicit

authorization to use author’s name on spine of book, thus defeating

commercial appropriation claim under Florida law). 

Appellants’ argument about the use of their names thus rises

and falls with their arguments about the applicability of the

first-sale doctrine and the nature of the product that Vintage

sells. Because we conclude that the first-sale doctrine applies

and that Vintage’s displays merely repackage the trading cards,

Vintage’s use of appellants’ names to label the displays does not

violate their common-law right of publicity.

21

court correctly entered summary judgment in favor of Vintage on the

right of publicity claim.16

III.

The judgment of the district court in favor of appellee is

AFFIRMED.