Plaintiff’s Opposition to Bulova’s Motion for Summary Judgment 17-cv-00436-NC

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ROBERT L. MEZZETTI II (SBN 114282)

Rob@mezzettilaw.com

MAUREEN PETTIBONE RYAN (SBN 245438)

Maureen@mezzettilaw.com

CHRISTOPHER R. MEZZETTI (SBN 282287)

Chris@mezzettilaw.com

MEZZETTI LAW FIRM, INC.

31 East Julian Street

San Jose, California 95112

Telephone (408) 279-8400

Facsimile (408) 279-8448

Attorneys for Plaintiff

Colonel David Randolph Scott (Ret.)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

COLONEL DAVID RANDOLPH SCOTT,

 Plaintiff,

v.

CITIZEN WATCH COMPANY OF 

AMERICA, INC., a California Corporation 

(successor to BULOVA CORPORATION, a 

New York corporation); STERLING 

JEWELERS, INC. dba KAY JEWELERS, a 

Delaware corporation; and DOES 1 through 

99, inclusive,

 Defendants.

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Case Number: 17-CV-00436-NC

PLAINTIFF’S OPPOSITION TO BULOVA’S 

MOTION FOR SUMMARY JUDGMENT 

PURSUANT TO FED. R. CIV. P. 56(a)

Date: February 7, 2017

Time: 1:00 p.m.

Courtroom: 7

Judge: Hon. Nathanael Cousins

Complaint Filed: January 27, 2017

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TABLE OF CONTENTS

TABLE OF AUTHORITIES...............................................................................iii

I. Introduction.....................................................................................................1

II. Statement of Issues Pursuant to Local Rule 7-4......................................................1

III. Facts..........................................................................................................1

A. Plaintiff’s Career as an Astronaut and Public Figure.......................................1

B. Plaintiff Auctions a Bulova Watch that he wore on the Moon..............................2

C. Defendants’ Unauthorized Use of Plaintiff’s Name, Identity, Voice and Likeness...3

IV. Argument..................................................................................................4

A. Legal Standard...................................................................................5

B. Plaintiff has Established a Genuine Factual Dispute Regarding his Eight 

 Pending Causes of Action......................................................................5

1. Plaintiff’s First and Second Causes of Action are not Duplicative..............5

2. Defendants Have Violated Plaintiff’s Common Law Publicity and

 Privacy Rights...........................................................................6

a. Bulova’s Use of Col. Scott’s Identity was Not “Incidental”.............6

b. Bulova’s “Speech” is Not Constitutionally Protected......................11

c. Bulova’s Use of Col. Scott’s Identity was Not in the Public 

 Interest.........................................................................13

d. Bulova;s Use of Col. Scott’s Identity was Not Transformative........16

3. Defendants Have Violated Plaintiff’s Section 3344 Publicity Rights..........19

a. The Public Affairs Exception Does Not Apply to Defendants.........19

b. Plaintiff is Readily Identifiable in the Marketing Material.............20

4. Defendants Have Violated Plaintiff’s Lanham Act Rights......................21

a. Bulova’s Use was Not a Nominative Fair Use...........................22

b. Bulova’s Conduct is Likely to Cause Confusion........................23

c. Bulova Made False Statements.............................................23

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d. Bulova Use of Col. Scott’s Name Violates Lanham Act...............24

5. Plaintiff’s Negligence and Emotional Distress Claims are Supported

 by Evidence............................................................................24

V. Conclusion..............................................................................................25

Certification.................................................................................................25

 

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TABLE OF AUTHORITIES

FEDERAL CASES

Abdul-Jabbar v. GMC

 85 F. 3d 407 (9th Cir. 1996)...............................................................5, 20, 22, 23

Aldrin v. Topps Co.

 2011 U.S. Dist. LEXIS 110800 at ⃰7 (C.D. Cal. Sept. 27, 2011)...................................16

Ali v. Playgirl, Inc.

 447 F. Supp. 723 (S.D.N.Y. 1978)....................................................................10

Allen v. National Video Inc.

 610 F. Supp. 612 (S.D.N.Y. 1985)....................................................................24

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

 838 F. Supp. 1501 (N.D. Okla. 1993)..............................................................8, 11

Davis v. Elec. Arts, Inc.

 775 F.3d 1172 (9th Cir. Cal. 2015)....................................................................14

Downing v. Abercrombie & Fitch

 265 F.3d 994 (9th Cir. 2001)......................................................................10, 20

Eisenberg v. Ins. Co. of N. Am.

 815 F.2d 1285 (9th Cir. 1987)............................................................................5

Estate of Fuller v. Maxfield & Oberton Holdings, LLC

 906 F. Supp. 2d 997 (N.D. Cal. 2012)................................................................16

Fraley v. Facebook, Inc.

 830 F. Supp. 2d 785 (N.D. Cal.2011).................................................................19

Henley v. Dillard Department Stores

 46 F. Supp. 2d 587 (N.D. Tex. 1999)..................................................................7

Hilton v. Hallmark Cards

 599 F.3d 894 (9th Cir. 2010)......................................................................15, 18

In re NCAA Student-Athlete Name & Likeness Licensing Litig.

37 F. Supp. 3d 1126 (N.D. Cal. 2014)....................................................................5

Keller v. Elec. Arts Inc. (In re NCAA Student-Athlete Name & Likeness Licensing Litig.)

 724 F.3d 1268 (9th Cir. Cal. 2013)............................................................13-14, 18

Maloney v. T3Media, Inc.

 853 F.3d 1004 (9th Cir. 2017)...........................................................................7

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Merle v. Sociological Research Film Corp.

 166 A.D. 376, 152 N.Y.S. 829 (1 Dept. 1915)........................................................7

Motschenbacher v. R.J. Reynolds Tobacco Co.

 498 F.2d 821 (9th Cir. 1974)...........................................................................10

Newcombe v. Adolf Coors Company

 157 F.3d 686 (9th Cir. 1998)...........................................................................20

Pooley v. National Hole-in-One Ass’n

 89 F. Supp. 2d 1108 (D. Ariz. 2000)...............................................................7, 10

Sinatra v. Nat’l Enquirer, Inc.

 854 F.2d 1191 (9th Cir. 1988)...........................................................................6

Waits v. Frito Lay

 978 F.2d 1093 (9th Cir. 1992).........................................................................24

Wendt v. Host Int’l, Inc.

 125 F.3d 806 (9th Cir. 1997)............................................................................5

White v. Samsung Elec. Am., Inc.

 971 F.2d 1395 (9th Cir. 1992).........................................................................23

Wong v. Golden State Auction Gallery, Inc.

 2016 U.S. Dist. LEXIS 27377 (N.D. Cal. Mar. 3, 2016)............................................8

Yeager v. Cingular Wireless LLC

 627 F. Supp. 2d 1170 (E.D. Cal. 2008)........................................................6, 10, 13

Yeager v. Cingular Wireless LLC

 673 F. Supp. 2d 1089 (E.D. Cal. 2009)............................................................7, 11

Zacchini v. Scripps-Howard Broad. Co.

 43 U.S. 562 (US 1977)..................................................................................14

STATE CASES

Comedy III Productions, Inc. v. Gary Saderup, Inc.

 25 Cal. 4th 387 (Cal. 2001).............................................................................12

Eastwood v. Superior Court

 149 Cal. App. 3d 409 (Cal. Ct. App. 1983)............................................................6

Gionfriddo v. Major League Baseball

 94 Cal. App. 4th 400 (2001)...........................................................................15

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Guglielmi v. Spelling-Goldberg Productions

 25 Cal. 3d 860 (Cal. 1979)..............................................................................18

Kirby v. Sega of Am., Inc.

 144 Cal. App. 4th 47 (Cal. Ct. App. 2006)......................................................15, 18

Maxwell v. Dolezal

 231 Cal. App. 4th 93 (Cal. Ct. App. 2014)............................................................6

Montana v. San Joe, Mercury News, Inc.

 34 Cal. App. 4th 790 (1995)...........................................................................16

FEDERAL CODES

15 U.S.C. 1125(a)(1).......................................................................................21

15 U.S.C. 1125(a)(a)(A)..................................................................................21

15 U.S.C. 1125(a)(1)(B)..................................................................................21

Federal Rule of Civil Procedure 56(a)....................................................................5

STATE CODES

California Civil Code Section 3344.....................................................................19

California Civil Code Section 3344(a)..................................................................19

California Civil Code Section 3344(d)..................................................................19

OTHER AUTHORITIES

CACI No. 400...............................................................................................25

CACI No. 1620.............................................................................................25

Local Rule 5-1(i)(3)........................................................................................25

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Colonel David Randolph Scott (“Plaintiff” or “Col. Scott”), submits the following 

Opposition to Citizen Watch Company of America, Inc. (f/k/a “Bulova”) Motion for Summary 

Judgment, joined by Defendant Sterling Jewelers, Inc., d/b/a Kay Jewelers (“Kay Jewelers”):

I. INTRODUCTION

Bulova’s motion for summary judgment misconstrues the law and glosses over the true 

factual disputes between the parties. The dispute pertains to two watches: Col. Scott’s Bulova 

watch that he wore to the moon (“Col. Scott Moon Watch”) and a watch Bulova describes as 

an “authentic replica” of Col. Scott’s Moon Watch (the “Bulova ‘replica’ ”).

The legal and factual disputes are clear. Col. Scott contends that Bulova unlawfully

used his name, identity, likeness, and his voice in order to promote the Bulova “replica” and 

their brand and falsely advertised the watch by associating it with his name, referring to it as a 

“moon watch,” and stating that it “authentically replicates” Col. Scott’s Moon Watch. 

Bulova’s conduct has caused Col. Scott, a national hero who has not commercialized his name 

and likeness, to suffer from embarrassment and humiliation. Col. Scott has presented 

sufficient evidence of Bulova’s misdeeds to bring all of his pending claims before a jury.

II. STATEMENT OF ISSUES PURSUANT TO LOCAL RULE 7-4

1. Whether Plaintiff established a genuine dispute of fact regarding his legal claims.

III. FACTS

A. Plaintiff’s Career as an Astronaut and Public Figure

Colonel David Randolph Scott is the seventh man to walk on the moon. He graduated 

fifth in his West Point class, and was commissioned as an officer in the United States Air 

Force. Col. Scott became a fighter pilot, a test pilot, and an astronaut, displaying great aptitude 

and talent. Col. Scott was a pilot for Gemini 8, the Command Module Pilot for Apollo 9, and 

the Mission Commander for Apollo 15. On Gemini 8, he served as co-pilot for Neil 

Armstrong, the first man to walk on the moon. Due to a thruster malfunction, Neil Armstrong 

and Col. Scott nearly perished—it was only their excellent piloting skills that saved their lives 

and the mission. (Declaration of Col. Scott, “Scott Dec.” at ¶¶1-4.)

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During the moon landing, Col. Scott spent more than eighteen hours over three separate 

“extravehicular activities” missions (or EVAs), during which time he was the first man to drive 

the lunar rover, collected samples, and performed experiments. (Scott Dec. at ¶4.) 

In his last moments on the moon, Col. Scott famously proved one of Galileo Galilei’s 

theories, that a hammer and a feather dropped in zero gravity would fall at the same rate. At 

the height of the Cold War, Col. Scott also placed the “fallen astronaut” statue on the moon, a 

tribute to both the cosmonauts and astronauts who died during the space race, and a rare 

display of unity between the U.S. and the U.S.S.R. (Scott Dec. at ¶4.) 

Following the moon landing, Col. Scott served for an additional four years in the Air 

Force, as part of the Apollo-Soyuz project. In 1975, he retired from the United States Air 

Force as a Colonel, but continued working for NASA as the civilian director of the Dryden 

Flight Research Center at Edwards Air Force Base until late 1977. (Scott Dec. at ¶5.)

After retiring from NASA, Col. Scott continued his life as a dedicated public servant. 

He has refused to accept remuneration for the many public engagements he still attends at the age 

of eighty-five. Col. Scott gives an annual lecture at his alma mater, MIT, and teaches a course as a 

visiting professor at Brown University, refusing salary, travel expenses, or room and board. Col. 

Scott also attends space-themed events. (Scott Dec. at ¶5.)

B. Plaintiff Auctions a Bulova Watch that he wore on the Moon

On October 22, 2015, Col. Scott auctioned off the Col. Scott Moon Watch for $1.625 

million dollars. Prior to the publicity surrounding the auction, Bulova was unaware that it had 

provided Col. Scott with a watch that he wore on the moon. (Declaration of Maureen 

Pettibone Ryan, “Ryan Dec.,” at ¶3, Ex. A.) After learning of the watch, Bulova began its 

efforts to profit from Col. Scott’s reputation and fame without his knowledge or consent.

First, Bulova asked Col. Scott to loan them the Col. Scott Moon Watch, so that they 

could wind and inspect it, and display it at Baselworld 2015, the preeminent trade show for 

watch companies and enthusiasts. At that time, and unbeknownst to Col. Scott, Bulova was 

planning a “replica” of the Col. Scott Moon Watch. (Scott Dec. at ¶8.) However, this 

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“replica” was based only on photos of the Col. Scott Moon Watch, as Bulova had no records 

regarding the original watch that it gifted to Col. Scott. (Ryan Dec. at ¶4, Ex. B.)

Second, Bulova wanted Col. Scott to speak with the press, ostensibly to promote the 

auctioning of the Col. Scott Moon Watch, but in reality so that Bulova could promote the 

Bulova “replica,” which was made with a quartz movement instead of the costly and precise 

Swiss movement for the Col. Scott Moon Watch, and which was not suitable for use in space. 

(Ryan Dec. at ¶¶6-7, Exs. D-E, A at 74:19-75:13; 82:9-18.)

Due to Bulova’s inability to provide adequate insurance for the Col. Scott Moon Watch, 

its demands to wind and test the watch, its failure to provide reasonable security, and the 

increasingly complex contract it proposed, none of Bulova’s plans to use the Col. Scott Moon 

Watch to publicize the Bulova “replica” came to pass. (Scott Dec. at ¶8.)

C. Defendants’ Unauthorized Use of Plaintiff’s Name, Identity, Voice, and Likeness.

After Bulova’s failure to obtain Col. Scott, as a spokesperson, Bulova deliberately 

misappropriated Col. Scott’s name, identity, voice, and likeness, as did its downstream 

retailers, both of their own accord and as instructed by Bulova. (Declaration of Larry Londre 

“Londre Dec., Ex. A; Ryan Dec. at ¶¶ 3, 8-11, Ex. A, F-X.) This use was of the sort that 

requires a licensing agreement. (Declaration of Doug Bania, “Bania Dec.”)

Name. Bulova featured Col. Scott’s name in a press release, copy listing the Bulova 

“replica” for sale on its downstream retailers’ websites, in copy that they provided to 

salespeople for third-party retailers, in interviews with the press, and in its own revisions to its 

Wikipedia page. (Ryan Dec. at ¶8, Exs. F-L, A at 109:18-111:12.)

Identity. Bulova also referred to Col. Scott by title—as “Mission Commander of 

Apollo 15.” Col. Scott is the only person who held that title. These references are found in 

copy listing the Bulova “replica” for sale on its website and third-party retailers’ websites, in 

advertisements, on training cards and as part of the “Pitchbook App” that Bulova used to train 

salespeople, and in the booklet that is both included with the Bulova “replica” and prominently 

displayed by retailers at Bulova’s request, and on the certificate of authenticity included with 

the Bulova “replica.” (Ryan Dec. at ¶9, Exs. M-S.)

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Voice. Bulova used a recording of Col. Scott’s voice as part of a video commercial for 

the Bulova “replica,” and did not obtain Col. Scott or NASA’s permission for any of its uses of 

Col. Scott’s name, identity, likeness or voice. (Ryan Dec. at ¶10, Ex. W.)

Likeness. Bulova advertised the Bulova “replica” with photos of Col. David Scott, on 

the moon, wearing his spacesuit and the red commander’s stripe (found on the helmet, sleeve, 

and knee) that was worn by all mission commanders from Apollo 13 on—a small group of five 

astronauts. (Scott Dec. at ¶9.) Bulova did not obtain Col. Scott or NASA’s permission when 

doing so. (Ryan Dec. at ¶11.c, Ex. A at 111:13-112:10; 143:18-25.) These photos are found in 

the booklet, and are also currently a part of the Bulova website. (Ryan Dec. at ¶11, Exs. X, T.)

These uses, individually and taken together, were intended to and in fact created the 

false impression that Plaintiff endorsed Defendants’ products, resulting in an enhanced value of

Defendants’ entire line of products, all to the detriment of Plaintiff. 

Bulova also clearly and impermissibly attempted to mislead consumers into believing 

that Defendants and Plaintiff are working in conjunction to “make history” together with the 

“replica” moon watch: “After Apollo 15’s mission commander made lunar history – while 

wearing his personal Bulova chronograph – we’re making history again.” (emphasis 

added) (Ryan Dec. at ¶12, Ex. M.) (Londre Dec. at Ex. A, pgs. 15-16.) This is a clear attempt 

to gain all of the benefits of an endorsement from Col. Scott without his consent. 

Bulova also falsely described the Bulova “replica” as a “moon watch” that is an 

“authentic replica” of the Col. Scott Moon Watch. However, the testimony of Bulova’s Rule 

30(b)(6) witness, Vice President Chris Napolitano, belies these claims. (Ryan Dec. at ¶13, 

Exs. G, I, O, P, Q, R, V and A at 74:19-75:13 and 82:9-18.)

IV. ARGUMENT

The crux of Bulova’s argument on summary judgment is as simple as it is misleading. 

Bulova contends that there is no dispute of material fact because it admits to producing the 

advertisements at issue. This argument, while rhetorically slick, is logically unsound.

This case does not turn on the existence of the advertisements. Instead, this case turns 

on a fact-specific inquiry into what these advertisements signify. Col. Scott has produced 

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evidence that shows that these advertisements are an unlawful use of his name and likeness, 

that they implied endorsement, that Bulova’s own customers referred to the Bulova “replica”

using his name, that there is a likelihood of consumer confusion, that Col. Scott was damaged, 

both monetarily and emotionally, and that Bulova’s conduct was negligent, if not deliberate. 

Unless Bulova does not dispute those facts, there is a genuine dispute of material fact. And if 

Bulova does concede those facts, it is not entitled to summary judgment.

A. LEGAL STANDARD

Summary judgment is only proper where there is “no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Proc. 56(a). “The 

moving party bears the burden of showing that there is no material factual dispute. Therefore, 

the court must regard as true the opposing party’s evidence, if supported by affidavits or other 

evidentiary material.” In re NCAA Student-Athlete Name & Likeness Licensing Litig., 37 F. 

Supp. 3d 1126, 1135 (N.D. Cal. 2014) (citations omitted). 

Furthermore, “the non-moving party’s evidence is to be taken as true and all inferences

are to be drawn in the light most favorable to the non-moving party.” Eisenberg v. Ins. Co. of 

N. Am., 815 F.2d 1285, 1289 (9th Cir. 1987) (citation omitted).

The Ninth Circuit has ruled that in certain fact-specific contexts, summary judgment is 

disfavored. This includes Lanham Act claims and right of publicity claims, both of which are 

highly factual in nature. See Wendt v. Host Int'l, Inc., 125 F.3d 806, 812 (9th Cir. 1997). In 

particular, likelihood of confusion raises factual issues that are not proper for determination on 

summary judgment. “Likelihood of confusion as to endorsement is therefore a question for the 

jury.” Abdul-Jabbar v. GMC, 85 F.3d 407, 413 (9th Cir. 1996) (citation omitted).

B. PLAINTIFF HAS ESTABLISHED A GENUINE FACTUAL DISPUTE 

REGARDING HIS EIGHT PENDING CAUSES OF ACTION.

1. Plaintiff’s First and Second Causes of Action are Not Duplicative.

Defendants challenge Plaintiff’s second cause of action, for invasion of privacy, 

alleging that it is duplicative of his first cause of action for common law right of publicity, but 

cite no case law for this proposition. (MSJ at 9:5-17.) Because the two claims are described in 

separate lines of cases, Col. Scott is entitled to maintain both causes of action. Compare

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Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417 (Cal. Ct. App. 1983); with Sinatra v. 

Nat'l Enquirer, Inc., 854 F.2d 1191, 1193 (9th Cir. 1988).

2. Defendants Have Violated Plaintiff’s Common Law Publicity and Privacy Rights.

Col. Scott has valid common law causes of action where there is a reasonable material 

fact dispute regarding the following four elements: “(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.” Maxwell v. Dolezal, 

231 Cal. App. 4th 93, 97 (Cal. Ct. App. 2014) (internal citations and quotations omitted); see 

also Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417 (Cal. Ct. App. 1983).

Bulova’s defenses only pertain to the first element, the use of Col. Scott’s identity, 

therefore that element and that element alone will be addressed. (See MSJ at 9:5-20:9.)

As shown by the evidence submitted with this opposition, Bulova has repeatedly used

Col. Scott’s identity. Bulova mentioned Col. Scott by name in a press release, advertisements,

website copy, and promotional information about the Bulova “replica.” Bulova referred to 

Plaintiff as the Mission Commander of Apollo 15, used his photograph on its website, in a 

booklet used to market the Bulova “replica,” used his voice in a video advertisement, quoted

him in the booklet that is displayed prominently with in stores, and displayed the Apollo 15 

mission patch, with Col. Scott’s name partly covered, in its “interactive archive.” (Ryan Dec. 

at ¶¶ 3, 8-11, 14, Ex. A, F-Y.) All of these uses were marketing, and were an attempt to use 

Col. Scott’s goodwill for Bulova’s benefit. (Londre Dec., Ex. A.)

Bulova does not deny these facts, and instead raises two defenses: (1) incidental use

(MSJ at 10:18-12:28); and (2) the First Amendment, because the use was in the public interest 

and/or is transformative. (MSJ at 13:1-18:6.) Neither of these defenses are persuasive. 

a. Bulova’s Use of Col. Scott’s Identity was Not “Incidental”

A use of a Plaintiff’s identity is incidental where “it is published for purposes other than 

taking advantage of his reputation, prestige, or other value associated with him.” Yeager v. 

Cingular Wireless LLC, 627 F. Supp. 2d 1170, 1177 (E.D. Cal. 2008) (citation omitted). Here, 

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Bulova deliberately invoked Col. Scott’s achievements and fame in order to enhance the 

reputation of the Bulova “replica” and brand. Bulova’s use, therefore, is not incidental.

Bulova’s use is readily distinguishable from cases where “incidental use” was found. 

For example, “ ‘Incidental use’ was found where a motion picture showed a factory building 

upon which there was a sign bearing the name and business of the plaintiff. Merle v. 

Sociological Research Film Corp., 166 A.D. 376, 152 N.Y.S. 829 (1 Dept. 1915)). . . . The 

court in Moglen v. Varsity Pajamas, Inc., found an ‘incidental use’ where a newspaper article 

reporting plaintiff's loss of a tennis match was partly reproduced, together with other articles, 

as a patchwork pattern in a fabric which defendants manufactured and sold for use in

underwear, pajamas, and play togs.” Henley v. Dillard Department Stores, 46 F. Supp. 2d 587, 

594 (N.D. Tex. 1999) (granting summary judgment in favor of Don Henley where the phrase 

“Don’s henley” was used to market henley shirts, and rejecting the defense of incidental use.)

Bulova attempts to downplay its extensive use of Col. Scott’s name and “tiny” 

photograph when arguing that its use is merely “incidental.” (MSJ at 10:19-22.) First, the 

photograph at issue is currently posted on Bulova’s webpage, and is not “tiny” when displayed 

on a computer screen. Also, the use of Col. Scott’s identity goes far beyond that, as discussed 

in detail in the Ryan Declaration. (Ryan Dec. at ¶¶ 8-9, Exs. A, F-V.) 

Furthermore, brief uses of a Plaintiff’s name or likeness are actionable, when such uses 

are prominent: “Even if the mention of a plaintiff's name or likeness is brief, if the use stands 

out prominently within the commercial speech or enhances the marketability of the defendant's 

product or service, the doctrine of incidental use is inapplicable. See Pooley, 89 F. Supp. 2d at 

1113.” Yeager v. Cingular Wireless LLC, 673 F. Supp. 2d 1089, 1100 (E.D. Cal. 2009)

(denying Cingular’s motion for summary judgment despite incidental use defense.)

Here, the scope of Bulova’s use is staggering. Most right of publicity cases involve a 

single use, not an extended campaign to repeatedly mention and allude to a celebrity. 

Bulova’s case law undermines its incidental use argument. For example, the language 

Bulova quotes from Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017), pertains to the 

use of a person’s identity “in news reporting, commentary, entertainment, works of fiction or 

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nonfiction, or in advertising that is incidental to such uses.” (MSJ at 10:26-11:1.) Bulova was 

not engaged in news reporting, commentary, entertainment, in writing works of fiction or 

nonfiction, nor was Bulova engaged in advertising those works. Maloney is inapposite.

Case law distinguishes advertising from creative works. “Most courts conclude that the 

‘use’ of another’s identity by a traditional medium such as television, newspapers, magazines 

or books will be protected by the First Amendment defenses of either ‘newsworthy’ or 

‘incidental use.’ On the other hand, if a commercial product uses the individual’s identity for 

profit, First Amendment protection dissipates.” Cardtoons, L.C. v. Major League Baseball 

Players Ass’n, 838 F. Supp. 1501, 1515 (N.D. Okla. 1993) (emphasis added). Here, Bulova 

has done exactly that. (Londre Dec., Ex. A.)

Defendants cite Wong v. Golden State Auction Gallery, Inc. In that case, Plaintiff 

Wong was listed on an appraisal as the person who ordered the appraisal. Wong v. Golden 

State Auction Gallery, Inc., 2016 U.S. Dist. LEXIS 27377 (N.D. Cal. Mar. 3, 2016). Wong 

was not a celebrity at all. Instead, it was the appraiser’s name (like Plaintiff Scott’s), that 

carried the value, not Wong’s. Wong has virtually no similarity with the case at bar. 

Defendants cite the Wong factors regarding incidental use, all of which favor Plaintiff: 

First, Plaintiff is a well-known public figure whose name, image and likeness (and 

goodwill) have a unique quality that results in profit to Defendants, not just on the sale of the 

Bulova “replica,” but on all of their products. (Londre Dec., Ex. A at 16-25.) Internal Bulova 

correspondence reveals this to be true. Bulova initially sought to obtain Col. Scott as a “brand 

ambassador,” attempted to borrow his watch, invited him to Baselworld, and wanted him to 

speak to the press. (Ryan Dec. at ¶¶15, 6, Ex. Z, D.) (Scott Dec. at ¶8.) After failing to obtain 

Col. Scott as a brand ambassador, Bulova also failed to obtain Astrophysicist Neil deGrasse 

Tyson as a celebrity ambassador, and contemplated gifting the Bulova “replica” to astronauts 

and twin brothers Scott and Mark Kelly to raise the watch’s profile. (Ryan Dec. at ¶16, Exs. 

AA-BB.) As the declaration of marketing expert Larry Londre establishes, Col. Scott is a 

celebrity, we live in a celebrity-obsessed culture, and Bulova’s conduct was intended to, and 

did, take advantage of Col. Scott’s name, likeness and person to promote Bulova’s image and 

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the image of the Bulova “replica.” (Londre Dec., Ex. A at 16-17.) Bulova emails reveal that 

marketing the Bulova “replica” raised its profile world-wide. (Ryan Dec. at ¶17, Ex. CC.)

Bulova argues that the “unique quality or value” of the Bulova “replica” is that the Col. 

Scott Moon Watch was worn on the moon. (MSJ at 11:14-16.) However, this quality belongs 

to Col. Scott’s Moon Watch, not the Bulova “replica.” In fact, the Bulova “replica” is only an 

“external replica” of the Col. Scott Moon Watch, it is not suitable for use in outer space, and it 

has never been to the moon. (Ryan Dec. at ¶13, Ex. A at 74:19-75:13; 80:23-81:9 and 82:9-18, 

F, G, I, O, P, Q, R, V.) Bulova intentionally created an association between Col. Scott and the 

Bulova “replica” to make it marketable, which is why they use his name, identity, likeness and 

voice in marketing the Bulova “replica.” (Londre Dec., Ex. A at 6-22.) These efforts were so 

successful that an early facebook commenter referred to the Bulova “replica” as the “Dave 

Scott Re-Edition.” (Ryan Dec. at ¶18, Ex. DD.) 

Second, the use of Plaintiff’s name, image and likeness contributes something of 

significance in that they are essential to raise the profile of the Bulova “replica” that is 

otherwise indistinguishable from any other Bulova timepiece. The watch is not a true replica. 

Bulova’s 30(b)(6) marketing expert admitted as much during his deposition, when he was 

asked if the Bulova “replica” was an “authentic replication” and he responded “No, not a 

hundred percent,” and admitted that the Bulova “replica” was “not meant to go into space.” 

(Ryan Dec. at ¶13.b, Ex. A at 74:19-75:13; 80:23-81:9 and 82:9-18.) Bulova’s marketing plan 

for the watch relies entirely on the Col. Scott story. 

Bulova contends that its use of Col. Scott’s identity contributes nothing of significance 

to the materials or the Bulova “replica,” due to the limited scope of that use. (MSJ at 11:18-19, 

11:22-23; Napolitano Dec. at ¶7, Exs. 1-2.) If so, it is curious that Bulova insists on continuing 

to use Col. Scott’s voice, photograph, and title as mission commander in advertising. 

Furthermore, Bulova is incorrect as a matter of law with regard to what sort of use is 

significant enough to constitute an unlawful use. In Yeager, the use of Gen. Yeager’s name in 

a single press release was sufficient; in Motschenbacher, a drawing of a race car with a 

different styling details and no visible driver was sufficient; in Downing, a single photograph 

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of surfers in a surfer-themed Abercrombie and Fitch catalog was held to be sufficient, even 

though Abercrombie and Fitch licensed the photograph and discussed the history of surfing in 

the catalog; in Pooley, six seconds of a professional golfer in an eight minute video was 

sufficient; and in Ali, a drawing of a naked man referred to as “the Greatest,” was sufficient. 

See Yeager v. Cingular Wireless LLC, 627 F. Supp. 2d 1170 (E.D. Cal. 2008); Motschenbacher 

v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974); Downing v. Abercrombie & Fitch, 

265 F.3d 994 (9th Cir. 2001); Pooley v. National Hole-in-One Ass’n, 89 F. Supp. 2d 1108 (D. 

Ariz. 2000); Ali v. Playgirl, Inc., 447 F. Supp. 723 (S.D.N.Y. 1978).

Third, the reference to Plaintiff is essential to the purpose and subject of the work, 

which is the marketing material for the Bulova “replica”—in fact, the marketing materials 

complained of center around the fact that Plaintiff wore a Bulova watch on the moon. (Ryan 

Dec. at ¶¶ 8-11, Ex. A, F-X; Londre Dec., Ex. A at 6-22.)

Bulova contends that the references to Plaintiff are “fleeting,” and that the materials 

could have depicted “any astronaut.” (MSJ at 12:1-8; Napolitano Dec. at ¶¶ 4, 6-12, Exs. 1-5.) 

Internal correspondence contradicts the idea that any astronaut could have been used, because

Bulova personnel repeatedly refer to obtaining images of Col. Scott or “the astronaut,” 

meaning Col. Scott. (Ryan Dec. at ¶19, Exs. EE-FF.) Also, if the materials could have 

depicted any astronaut, why was Col. Scott in fact depicted? Why was his mission patch 

displayed, his name included in interviews, a press release, and advertorials, his title as mission 

commander used liberally, photos of him taken, all to promote the Bulova “replica,” if any 

astronaut would do? Bulova’s claim that this is somehow accidental is hard to credit.

Fourth, Plaintiff’s name and likeness are stated, referenced, and implied throughout the 

material. (Ryan Dec. at ¶ 8-11, Ex. A, F-X.) Bulova planograms instruct retailers to display 

the booklet front and center, and use Col. Scott’s name and title in training materials provided 

to downstream retailers, with the expectation that these retailers will tell the “story” regarding 

Col. Scott to potential purchasers of the Bulova “replica.” (Ryan Dec. at ¶¶8-11, Ex. A, F-X.) 

Bulova claims that the link between Col. Scott and the Bulova “replica” is his own 

doing. (MSJ at 12:15-17.) However, this is false. Col. Scott is linked to the Col. Scott Moon 

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Watch, because he owned it and wore it in space. But for Bulova’s tireless efforts to tie Col. 

Scott to the Bulova “replica,” no such link would exist. Defendants simply do not have the 

right to market a watch using the name and likeness of a celebrity simply because that celebrity 

once wore a Bulova-branded watch, and doing so is a usurpation of Col. Scott’s goodwill. 

Just as Puma would not be able to use Usain “Lightning” Bolt’s name and likeness to 

advertise the iconic gold Pumas he wore to the Rio Games in 2016 in the absence of a licensing 

agreement, nor can Bulova use Col. Scott’s fame to advance its own brand. 

Even celebrities must wear shoes and clothes, and, perhaps, watches. Under Bulova’s 

interpretation of the law, this means that cobblers, clothiers, and watchmakers are entitled to 

free use of those celebrities’ names and likenesses for the purposes of publicity simply because 

those celebrities wear clothes and accessories.

Bulova cites Aligo v. Time-Life Books, Inc., for the proposition that their use is 

incidental. (MSJ at 12:18-26.) However, the case is not analogous. Aligo involves the use of 

a person’s name and likeness by a magazine, in a promotion of that magazine’s content, which 

is covered by the incidental use doctrine. See Cardtoons, L.C. v. Major League Baseball 

Players Ass’n, 838 F. Supp. 1501, 1515 (N.D. Okla. 1993); see also Yeager v. Cingular 

Wireless LLC, 673 F. Supp. 2d 1089, 1100 (E.D. Cal. 2009). 

Bulova has not published a book, or a magazine. It has not created a documentary, a 

play, or a novel about its involvement in the space race. This it could do. Instead, it has at 

every turn only discussed this alleged “history” while marketing the Bulova “replica” which is 

not an authentic replica of the Col. Scott Moon Watch. This is all marketing, as set forth in 

detail in marketing expert Larry Londre’s declaration. (Londre Dec., Ex. A.)

b. Bulova’s “Speech” is Not Constitutionally Protected

As Samuel Johnson once said, “patriotism is the last refuge of the scoundrel.” In its 

motion for summary judgment, Bulova attempts to cloak its desire for profit in the 

Constitution. This attempt is unavailing. (MSJ at 13:2-14:8.) Here, Bulova is not a crusading 

journalist or a struggling artist. Instead, it is a company seeking to bask in borrowed glory 

from an astronaut and profit commercially from his efforts, his goodwill, and his fame.

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While the Apollo 15 moon landing holds great historical significance, Defendants’ 

advertisements do not. The booklet, an advertisement for the sale of the Bulova “replica,” is 

not historically or artistically significant. It is not entitled to the constitutional protections 

often not afforded to legitimate news outlets. 

Defendants’ conduct is analogous to that in Comedy III, where the court rejected First 

Amendment protections for T-shirts of the Three Stooges. The California Supreme Court held: 

“Although surprisingly few courts have considered in any depth the means of reconciling the 

right of publicity and the First Amendment, we follow those that have in concluding that 

depictions of celebrities amounting to little more than the appropriation of the celebrity's 

economic value are not protected expression under the First Amendment.” Comedy III 

Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 400 (Cal. 2001). 

Plaintiff’s publicity claim is grounded in well-established law: “The right of publicity 

is often invoked in the context of commercial speech when the appropriation of a celebrity 

likeness creates a false and misleading impression that the celebrity is endorsing a product.

Because the First Amendment does not protect false and misleading commercial speech and 

because even nonmisleading commercial speech is generally subject to somewhat lesser First 

Amendment protection, the right of publicity may often trump the right of advertisers to make 

use of celebrity figures.” Comedy III, at 396. Notably, Defendants chose not to include a 

disclaimer that Colonel Scott is not endorsing or affiliated with Bulova in its advertisements.

The crux of each individualized analysis of the interplay between first amendment 

protection and the right to publicity rests on the purpose and intention of the use. When 

evaluating the first fair use factor, the purpose and character of the use: “the central purpose of 

the inquiry into this fair use factor ‘is to see, in Justice Story's words, whether the new work 

merely “supersede[s] the objects” of the original creation, [citations], or instead adds 

something new, with a further purpose or different character, altering the first with new 

expression, meaning, or message; it asks, in other words, whether and to what extent the new 

work is “transformative.” ’ ” Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 

387, 404 (Cal. 2001). Plaintiff’s name, voice, identity and unaltered photographs in 

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Defendant’s advertisements are not transformative, as nothing has been “transformed” nor is 

any unique or artistic message associated with it, other than as an advertisement to sell a watch.

Here, the offending use is in the advertising and marketing materials designed to assist 

in the commercialization, for Defendants’ exclusive profit, of the Bulova “replica.” 

Defendants cannot be afforded constitutional protection merely by the inclusion of historical 

facts in its marketing material that makes it appear as though Col. Scott is connected to or 

otherwise endorsing the product. Indeed, the defendants in Yeager and Abdul-Jabbar were 

punished for doing exactly that. Yeager v. Cingular Wireless LLC, 627 F. Supp. 2d 1170 (E.D. 

Cal. 2008); Abdul-Jabbar v. GMC, 75 F.3d 1391 (9th Cir. 1996). 

As the Yeager and Abdul-Jabbar courts realized, if citing a historical fact about a 

celebrity was an end-run around the right to publicity, the right itself would quickly be 

rendered meaningless. In order to create the appearance of an endorsement, or associate 

themselves with a celebrity, an advertiser would need only to state a historical fact about the 

celebrity in the text of the advertisement, and invoke the protection of the First Amendment. 

c. Bulova’s Use of Col. Scott’s Identity was Not in the Public Interest

While it is clear that works for profit may be afforded First Amendment protections if 

they are in the public interest, this by no means is a wholesale immunization against liability. 

Public interest protection depends upon the purpose of the unauthorized use and the manner in 

which it was used. Unlike the Defendants in every case cited by Bulova in this motion, Bulova 

and Kay are not artists, news broadcasters, entertainers, or documentarians. Moreover, unlike 

every successful case cited by Defendants in this motion, the infringing use is not the product 

itself. It is supplemental marketing and advertising material for the product, including the 

widespread use of Plaintiff’s name in all online advertisements Defendants and retailers. This 

critical distinction removes Defendants’ use as a work in the public interest because it is 

merely an advertisement for the sale of a product (a watch) and nothing more. 

This case is on all fours with Keller v. Elec. Arts Inc. and Davis v. Elec. Arts, Inc. In 

Keller v. Elec. Arts Inc., a former college football player sued for the use of his likeness in a 

video game. Keller v. Elec. Arts Inc. (In re NCAA Student-Athlete Name & Likeness 

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Licensing Litig.), 724 F.3d 1268, 1283 (9th Cir. Cal. 2013). In Keller, “Every real football 

player on each team included in the game has a corresponding avatar in the game with the 

player's actual jersey number and virtually identical height, weight, build, skin tone, hair color, 

and home state.” Id. at 1271. The Ninth Circuit held that, unlike the cases on which 

Defendant relied, Defendant was “not publishing or reporting factual data” and, thus the public 

interest defense did not apply. Id. 

In Davis v. Elec. Arts, Inc., Electronic Arts’ Madden NFL video game included 

historical data on NFL teams and players without obtaining a license for use. The court 

observed: “although the players on the historical teams are not identified by name or 

photograph, each is described by his position, years in the NFL, height, weight, skin tone, and 

relative skill level in different aspects of the sport.” Davis v. Elec. Arts, Inc., 775 F.3d 1172, 

1175 (Ninth Cir. Cal 2015). In Davis, the Court, citing Keller, held that the public use defense 

did not apply because, just like in Keller, “although Madden NFL contains some factual data 

about current and former NFL teams and players, it is ‘a game, not a reference source’ or a 

‘publication of facts’ about professional football.” Id. at 1179. Here, while some of the 

advertisements for the Bulova “replica” contain some historical data, the product is a watch, 

not a reference source, or a publication of facts about the Apollo 15 space mission.

The U.S. Supreme Court’s decision in Zacchini v. Scripps-Howard Broad. Co. squarely 

favors Plaintiff. In Zacchini, Plaintiff’s entire act was broadcast on a newscast. The Court 

held that, despite being a newscast, the broadcast of the entertainer’s performance was not 

afforded a constitutional free speech privilege as a defense. The Court noted, “The rationale 

for [protecting the right of publicity] is the straight-forward one of preventing unjust 

enrichment by the theft of good will. No social purpose is served by having the defendant get 

free some aspect of the plaintiff that would have market value and for which he would 

normally pay." Zacchini, 43 U.S. 562, 576 (US 1977) (citations omitted, emphasis added). 

Each of Defendants’ cited cases are easily distinguishable from the case at bar, leaving 

Defendant with no analogous legal authority:

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In Dora, (MSJ at 14:15-17), a movie was made about a famous surfer, in the context of 

the history of surfing. If Dora had instead been about an advertising campaign featuring 

Mickey Dora surfing, or if Bulova had released a feature film about its involvement in the 

space race with no commercial tie-ins, Bulova’s citation of Dora would be more persuasive. 

In Gionfriddo, (MSJ at 14:17-19), Plaintiffs, former baseball players, sued over the use 

of their names and statistics, in Major League Baseball programs and websites. Gionfriddo v. 

Major League Baseball, 94 Cal. App. 4th 400, 409 (2001). The court held that the uses were 

not commercial speech because they did not sell a product. The public interest there was the 

need for the statistics on the game being played, with MLB being the most likely source to 

publish this information, as it kept the statistics. And as MLB kept its own statistics, they were 

merely publishing their own information, just as in Montana. This would be akin to NASA

using Plaintiff’s name and image in a historical account of the Apollo 15 mission. MLB’s use 

is not analogous to Defendant’s use of Plaintiff’s name, image, and likeness to sell a watch. 

The Hilton case (MSJ at 14:19-21) actually supports Plaintiff’s position. Although the 

court ruled that Ms. Hilton’s celebrity was a matter of public interest for the purpose of an antiSLAPP motion, it rejected Hallmark’s “public interest defense” to Ms. Hilton’s claim of 

misappropriation of name and likeness because the defense only applies to “the publication of 

newsworthy items,” and the birthday card in question was not newsworthy. Hilton v. Hallmark 

Cards, 599 F.3d 894, 903-907, 912 (9th Cir. 2010). In the same way, Bulova’s advertisements 

promote a product, they do not merely report information in a newsworthy fashion.

In Winter and Kirby, (MSJ at 14:27-28) creative works (a comic book and a video 

game) were at issue. Bulova did not create a comic book or a video game here—they created 

and are advertising the Bulova “replica.” Furthermore, in Kirby, the court held that despite the 

fact that the video game avatar was different from Ms. Kirby, there was a genuine dispute of 

material fact regarding whether the use was transformative, permitting the case to go forward 

to trial. Kirby v. Sega of Am., Inc., 144 Cal. App. 4th 47, 56 (Cal. Ct. App. 2006).

In Montana, the San Jose Mercury news sold a poster containing a photograph of Joe 

Montana, which was originally published in its newspaper as a special insert discussing the 

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49er’s victory. The Court found in favor of the Mercury News because the newspaper was 

merely re-publishing its own, already constitutionally protected work, in its entirety. Montana 

v. San Jose Mercury News, Inc., 34 Cal. App 4th 790 (1995). Again, unlike in Plaintiff’s case, 

the work itself was the product (and not merely advertising material).

Aldrin is distinguishable for the same reason. In Aldrin, Defendant Topps used 

Aldrin’s name and image in a set of “American heroes” historical trading cards. The Court, 

citing Hilton, discussed in detail below, held that “the [trading] cards propose no commercial 

transaction, and are not advertisements for any product, let alone an unrelated product. Rather, 

as in Hilton, the speech is the product, and is protected.” Aldrin v. Topps Co., 2011 U.S. Dist. 

LEXIS 110800 at *7 (C.D. Cal. Sept. 27, 2011). Again, Defendants are selling a watch, not the 

online and print advertising which contain the unauthorized use. Unlike in Aldrin, where the 

product was a description of Aldrin’s achievements in space exploration, the product at issue

here (a watch) bears no connection to why Plaintiff is famous.1 Plaintiff is not famous for 

wearing a watch in space, but rather, for being one of 12 people to have walked on the moon. 

This fame did not happen coincidentally – it was the result of years of hard work, dedication, 

bravery, and sacrifice, none of which have anything to do with Defendants or their watch. 

In a footnote purporting to be about the Montana case, Bulova argues that the booklet 

promoting the Bulova “replica” is “not available to or displayed to the public.” (MSJ at 15 

n.8.) That is patently false. Bulova repeatedly displayed the booklets in stores and at 

promotional events, including Feldmar. (Ryan Dec. at ¶¶9.d, 20, Exs. T-U, GG.)

d. Bulova’s Use of Col. Scott’s Identity was Not Transformative

Defendants attempt to argue that the use of Plaintiff’s photograph was transformative, 

despite being an unaltered, exact match to Plaintiff’s actual image. This argument is simply 

nonsensical. 

 1 Because the Bulova “replica” has no bearing on why Plaintiff is famous, Defendants have no 

First Amendment protection: “Defendant has cited, and the Court is aware of, no authority 

establishing that there is any First Amendment protection for the use of a celebrity's name, 

transformed or otherwise, to sell an unrelated product.” Estate of Fuller v. Maxfield & Oberton 

Holdings, LLC, 906 F. Supp. 2d 997, 1006 (N.D. Cal. 2012).

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In Comedy III, the California Supreme Court delineates five factors in determining

whether a work is sufficiently transformative to obtain First Amendment Protection:

(1) if "the celebrity likeness is one of the 'raw materials' from which an

original work is synthesized," it is more likely to be transformative than

if "the depiction or imitation of the celebrity is the very sum and

substance of the work in question." Comedy III, at 809.

(2) the work is protected if it is "primarily the defendant's own

expression"—as long as that expression is "something other than the

likeness of the celebrity." Id.

(3) the inquiry is "more quantitative than qualitative" and should ask

"whether the literal and imitative or the creative elements predominate in

the work." Id.

(4) A "subsidiary inquiry" as to whether "the marketability and

economic value of the challenged work derive primarily from the fame

of the celebrity depicted” should be used in close cases) Id. at 810.

(5) "when an artist's skill and talent is manifestly subordinated to the 

overall goal of creating a conventional portrait of a celebrity so as to 

commercially exploit his or her fame," the work is not 

transformative. Id.

Comedy III, at 809-810.

Utilizing these factors, the Court in Comedy III found that the work, a lithograph used 

to create silk-screened T-shirts of the Three Stooges, did not add significant creative elements 

so as to be transformed into something more than a mere celebrity likeness or imitation. In so 

doing, the California Supreme Court upheld Plaintiff’s right of publicity, “recognizing 

that certain forms of commercial exploitation of celebrities that violate the state law right of 

publicity do not receive First Amendment protection. Id. at 403.

Applying the Comedy III factors to this case, Defendant’s use is clearly not 

transformative. Defendants used Plaintiff’s name, image, and likeness to sell the Bulova 

“replica,” the importance of which is based entirely on its link to Plaintiff. While the 

marketing booklet contained more information than simply Plaintiff’s name and image, it 

merely recounted additional historical facts from the Apollo 15 mission in an effort to highlight 

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Plaintiff Scott’s accomplishments to further bolster the appeal of the Bulova “replica” and 

imply a connection between the Bulova “replica” and Plaintiff. There were no creative 

elements in the marketing material. Plaintiff’s image was unaltered. It was not the “raw 

material;” it was the finished product. There was no “artist” nor any “skill and talent” 

involved. Again, and most importantly, neither the marketing booklet, nor any other adverting 

for the Bulova “replica,” was for sale. Thus, the “work” (the booklet and other advertising) 

had no independent value at all. The booklet and online advertising were not the product for 

sale. And certainly the economic value of the Bulova “replica,” as marketed by Defendants, 

was derived exclusively from the fame of the celebrity depicted: Plaintiff. 

In Keller v. Electronic Arts, Inc. (In re NCAA), a former college football player’s 

likeness was used in a video game. The Ninth Circuit held that “under the ‘transformative use’

test developed by the California Supreme Court, EA's use does not qualify for First

Amendment protection as a matter of law because it literally recreates Keller in the very setting 

in which he has achieved renown.” Keller v. Elec. Arts Inc. (In re NCAA Student-Athlete 

Name & Likeness Licensing Litig.), 724 F.3d 1268 (9th Cir. Cal. 2013). Defendants’ use is 

analogous in that it the booklet contains an unaltered photograph of Plaintiff in the very setting 

in which he has achieved renown.

While the works in Guglielmi, Kirby, and Hilton, cited by Defendants, were found to be 

transformative, the unauthorized use was the product itself (instead of advertising material for 

the product being sold as in this case). In each case, the work contained significant artistic 

elements (unlike in this case, where Plaintiff’s name and a clear and untouched photograph 

were used). In Guglielmi, the work was a fictionalized version of a celebrity’s life, essentially 

incorporating his name, image, and likeness into a work of fiction. Guglielmi v. SpellingGoldberg Productions, 25 Cal. 3d 860 (Cal. 1979). In Kirby, a video game character was 

loosely based on a lead singer, but bore significant distinctions on height, weight, hairstyle, 

costume, and setting. Kirby v. Sega of America, Inc., 144 Cal. App. 4th 47. In Hilton, the work 

was a greeting card which incorporated a cartoon version of Hilton and her “that’s hot” motto 

into a birthday joke. Hilton v. Hallmark Cards, 599 F. 3d 894 (9th Cir. 2010). These cases are 

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clearly not analogous. The distinction between these cases and the case at bar is striking, and 

underscores the legal and factual dispute regarding the transformative use defense in this case.

3. Defendants Have Violated Plaintiff’s Section 3344 Publicity Rights.

California Civil Code Section 3344 provides: “Any person who knowingly uses 

another’s name, voice, signature, photograph, or likeness, in any manner, on or in products,

merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, 

products, merchandise, goods or services, without such person’s prior consent ... shall be 

liable for any damages sustained by the person or persons injured as a result thereof.” Cal. 

Civ. Code §3344(a) (emphasis added).

Defendants do not challenge the existence of a genuine dispute of material facts with 

regard to the elements of a claim under Section 3344. Instead, they only raise the defenses of 

public affairs and that Plaintiff is not “readily identifiable” from the photograph.

a. The Public Affairs Exception Does Not Apply to Defendants.

California Civil Code Section 3344(d) provides that, “For purposes of this section, a 

use of a name, voice, signature, photograph, or likeness in connection with any news, public 

affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for 

which consent is required under subdivision (a).”

This exception is inapplicable because Defendants are not news, public affairs, or 

sports broadcasters or documentarians. Notably, each of the cases cited by Defendants was

filed against news organizations or moviemakers (i.e, members of the press, or writers, 

directors, and producers, not advertisers and salesmen) for their dissemination of news stories

and documentaries. (MSJ at 18:9-19:2.) Defendants’ use was not in connection with any news 

story or documentary, but rather with the sale of a watch, which is not news.

“Even newsworthy actions may be subjects of § 3344 liability when published for

commercial rather than journalistic purposes. The Ninth Circuit has squarely held that the

commercial use of a person's newsworthy acts may nonetheless still result in liability under §

3344.” Fraley v. Facebook, Inc., 830 F. Supp. 2d 785, 805 (N.D. Cal. 2011). Fraley 

cited Downing v. Abercrombie & Fitch, wherein the court rejected a clothing retailer's

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newsworthiness argument where the retailer used plaintiff's photograph “essentially as

window-dressing to advance the catalog's surf-theme.” Downing v. Abercrombie & Fitch, 265 

F.3d 994 (9th Cir. Cal. 2001). Fraley also quoted Abdul-Jabbar v. GMC: "While [Kareem

Abdul-Jabbar's] basketball record may be said to be ‘newsworthy,’ its use is not automatically

privileged. GMC used the information in the context of an automobile advertisement, not in a 

news or sports account. Hence GMC is not protected by section 3344(d)." Abdul-Jabbar v.

GMC, 85 F.3d 407, 416 (9th Cir. 1996). In Fraley, Downing, and Abdul-Jabbar, the Courts 

consistently held that, while information in a commercial may be newsworthy, the use is not a 

“news account” sufficient to invoke the protection of section 3344(d). Under this analysis, the 

public affairs exception does not apply to Defendants’ use of Plaintiff’s name, image, and 

likeness in its advertising material, because the use is not a “news account.”

b. Plaintiff is Readily Identifiable in the Marketing Material.

Defendants’ argument that Plaintiff is not readily identifiable misses the mark. First, 

Defendants only make reference to Plaintiff’s photograph. They do not challenge Col. Scott’s 

contention that they used his name, voice, or likeness, which is also actionable under the 

statute. Plaintiff’s name, title, photograph and voice were used in various versions of the 

marketing material for the Bulova “replica,” and continue to be used with downstream retailers 

and on third party websites. (Londre Dec., Ex. A at 15-16.) This evidence alone is grounds

enough to deny the motion.

Further, the photograph used has not removed all identifiable markings (certainly not 

the unique Commander’s red stripe on the sleeve, pants, and helmet, or the lunar rover, first 

used on the Apollo 15 mission). In Newcombe v. Adolf Coors Company, the court found that 

there was a genuine issue of fact that a drawing of a photograph of Plaintiff was his likeness, 

even though the drawing differed from the photograph in several ways. Newcombe v. Adolf 

Coors Company, 157 F.3d 686, 691-693 (9th Cir. 1998). Here, Plaintiff’s image is unretouched 

and it is indisputably Plaintiff. (Scott Dec. at ¶9.) Further, Defendants have created a lasting 

association between Plaintiff and the Bulova “replica.” Defendants cannot unring the bell.

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For the reasons set forth above, Plaintiff has established a genuine material fact dispute 

with regard to Bulova’s alleged defenses.

4. Defendants Have Violated Plaintiff’s Lanham Act Rights

Plaintiff’s Fifth and Sixth Causes of Action, for False Designation of Origin and False 

Advertising, both arise under the Lanham Act, which bars false designations of origin, and 

false product descriptions, commercially and otherwise: 

(1) Any person who, on or in connection with any goods or services, or any 

container for goods, uses in commerce any word, term, name, symbol, or 

device, or any combination thereof, or any false designation of origin, false 

or misleading description of fact, or false or misleading representation of 

fact, which—

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the 

affiliation, connection, or association of such person with another person, or 

as to the origin, sponsorship, or approval of his or her goods, services, or 

commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, 

characteristics, qualities, or geographic origin of his or her or another 

person's goods, services, or commercial activities,

shall be liable in a civil action by any person who believes that he or she is 

or is likely to be damaged by such act.

15 U.S.C. 1125(a)(1).

Defendants falsely designated the origin of the product, the Bulova “replica,” which has 

no connection to the space program, Apollo 15, or Col. Scott, by using Col. Scott’s name and 

title (as mission commander of Apollo 15) in such a manner that it was “likely to cause 

confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of 

such person with another person, or as to the origin, sponsorship, or approval of his or her 

goods, services, or commercial activities by another person.” 15 U.S.C. 1125(a)(1)(A).

Furthermore, by referring to the Bulova “replica” as a “moon watch” and an “authentic 

replica,” Defendants, “in commercial advertising or promotion, misrepresent[ed] the nature, 

characteristics, qualities, or geographic origin of . . . goods . . .” 15 U.S.C. 1125(a)(1)(B). 

In Bulova’s extensive advertising of the Bulova “replica,” it repeatedly referred to the 

watch as an “accurate replica” or a watch that “accurately replicates” the Col. Scott Moon 

Watch. When it came time for Bulova to describe the Bulova “replica” under penalty of 

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perjury, in Chris Napolitano’s declaration in support of this motion for summary judgment, for 

the first time, Bulova described it as an “external replica.” (Napolitano Dec. at ¶4.) During his 

30(b)(6) deposition as Bulova’s marketing expert, Mr. Napolitano admitted that the watch was 

not a “100% replica” and was not designed for the conditions on the moon. (Ryan Dec. at ¶13, 

Ex. A 74:19-75:13; 80:23-81:9 and 82:9-18.)

a. Bulova’s Use was Not a Nominative Fair Use

Bulova’s nominative fair use is not persuasive—Col. Scott is not a Volkswagen 

someone wishes to repair, he is a human being. (MSJ at 20:11-22:15.) A much more apt 

analogy would be as follows:

Brad Pitt, an avid car collector, purchased a Chevrolet Camaro Super Sport (“SS”) in 

2009. In our hypothetical, in 2018, his assistant lists the car for sale on Craigslist. Under 

nominative fair use, Mr. Pitt’s assistant may refer to the car as a Chevrolet Camaro SS. He or 

she may also indicate that the car was owned and driven by Mr. Pitt. If someone is to buy that 

car from Mr. Pitt, they could themselves advertise it as a Camaro SS, and state that it was 

owned by Mr. Pitt. Chevrolet, on the other hand, is not at liberty to purchase a copyrighted 

image of Mr. Pitt and his Camaro, and re-release the car as the “Hollywood Camaro SS” using 

Mr. Pitt’s photo and referring to him by his nickname of “Brad the Pitt-Bull” when marketing 

the car. Mr. Pitt’s sale of the car is a nominative fair use—you cannot describe a Chevy 

Camaro SS without calling it precisely that. Chevrolet’s hypothetical actions, on the other 

hand, are not. The fact that Brad Pitt owned and loved a Camaro and appeared in public with it 

does not mean that Chevrolet can discuss that “shared history” when marketing the car. 

Bulova’s use is clearly not nominative, and it misconstrues the doctrine of nominative 

fair use. Nominative fair use applies where the word used is “the only word reasonably 

available to describe a particular thing is pressed into service.” Abdul-Jabbar v. GMC, 85 F.3d 

407, 412 (9th Cir. 1996). Here, that is simply not the case. Bulova has described the Bulova 

“replica” at length, including on its own website, without reference to either Col. Scott, his title 

as mission commander of Apollo 15. (Ryan Dec. at ¶21.)

Plaintiff has raised a triable issue of material fact with regard to nominative fair use.

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b. Bulova’s Conduct is Likely to Cause Confusion

Bulova’s use of Plaintiff’s name, image, and likeness creates a false impression in the 

eyes of the public that Plaintiff is endorsing the Bulova “replica” or is connected with Bulova 

in some material way. (Ryan Dec. at ¶18, 22, Exs. DD, HH.)

On its face, Bulova’s own language supports such an interpretation. Both in its online 

description, its video advertising, and in the marketing booklet, Defendants clearly and 

impermissibly attempt to mislead consumers into believing that Defendants and Plaintiff are 

working in conjunction to “make history” again together with the Bulova “replica”: “After 

Apollo 15’s mission commander made lunar history – while wearing his personal Bulova 

chronograph – we’re making history again.” (Ryan Dec. at ¶12, Ex. M; Londre Dec., Ex. A 

at 15-16.) (Emphasis added). Col. Scott is not part of the “we” that Bulova describes, nor is 

the Bulova “replica” “historic.” In addition to being false and misleading, it also borders on 

the ridiculous to state that an alleged replica watch is making history.

Finally, likelihood of confusion is a fact question that should be decided by the jury. 

“Likelihood of confusion as to endorsement is therefore a question for the jury.” Abdul-Jabbar 

v. GMC, 85 F.3d 407, 413 (9th Cir. 1996), citing White v. Samsung Elec. Am., Inc., 971 F.2d 

1395, 1400-01 (9th Cir. 1992). In Abdul-Jabbar, trivia questions about “Lew Alcindor” (Mr. 

Abdul-Jabbar’s birth name) juxtaposed with an advertisement for an Oldsmobile was sufficient 

to withstand summary judgment. So too are Col. Scott’s claims.

c. Bulova Made False Statements

Bulova described the Bulova “replica” repeatedly in its advertising as being an 

“authentic replica” of the watch worn by Apollo 15’s mission commander on the moon. This 

assertion is patently false. The Bulova “replica,” unlike the Col. Scott Moon Watch, has a 

quartz movement instead of an expensive Swiss movement, it is not a “moon watch,” as it is 

has never been to the moon, it is only an “external replica” according to Bulova’s 30(b)(6) 

witness, despite the fact that language occurs nowhere in the subject advertising. It is not a 

“100%” replica, according to that same witness, and it was not designed to withstand 

conditions on the moon. (Ryan Dec. at ¶13, Ex. A at 74:19-75:13; 80:23-81:9 and 82:9-18.)

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Bulova’s only arguments regarding false statements are that they did not make any, 

which is false, and that Col. Scott was not injured. As set forth in Col. Scott’s declaration, he 

was injured because he has been associated with a product that he would never endorse, 

because it is not a truthful and accurate replica of the watch he wore. (Scott Dec. at ¶10-15.) 

Furthermore, as a result of Bulova’s actions, Col. Scott has lost future income because he is

unable to reach any agreements to endorse a watch. (Bania Dec. at ¶8.)

d. Bulova Use of Col. Scott’s Name Violates Lanham Act

Bulova has referred to Col. Scott by name, as mission commander, and as mission 

commander of Apollo 15. All of these uses constitute violations of the Lanham Act. See Waits 

v. Frito Lay, 978 F.2d 1093, 1106 (9th Cir. 1992) (citing Allen v. National Video, Inc., 610 F. 

Supp. 612, 625-626 (S.D.N.Y. 1985) for the proposition that a celebrity’s name and face are 

tantamount to the interests of a trademark holder in a distinctive mark).

Bulova misconstrues the Lanham Act, with the argument that because their use of Col. 

Scott’s name is not a use in a trademark sense, their use is lawful. (MSJ at 25:1-19.) This is 

incorrect. As set forth in the Lanham Act itself and in Waits, a misappropriation of a 

celebrity’s name and likeness is a violation of the Lanham Act as long as it is a false 

endorsement. “Specifically, we read the amended language to codify case law interpreting 

section 43(a) to encompass false endorsement claims. Section 43(a) now expressly prohibits, 

inter alia, the use of any symbol or device which is likely to deceive consumers as to the

association, sponsorship, or approval of goods or services by another person.” Waits v. Frito 

Lay, 978 F.2d 1093, 1107 (9th Cir. 1992). Bulova’s trademark argument is a non-sequitur. 

5. Plaintiff’s Negligence and Emotional Distress Claims Are Supported by Evidence.

Bulova contends that Col. Scott’s claims for Emotional Distress and Negligence are 

“not necessary” and that it is entitled to summary judgment because (1) Bulova owes plaintiff 

no duty; (2) its conduct was not outrageous enough to cause emotional distress; and (3) 

plaintiff’s negligence claim is duplicative of his other claims.

First, Bulova owes plaintiff a duty of care under California Law. “Everyone is 

responsible, not only for the result of his or her willful acts, but also for an injury occasioned to 

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another by his or her want of ordinary care or skill in the management of his or her property or 

person, except so far as the latter has, willfully or by want of ordinary care, brought the injury 

upon himself or herself.” Cal Civ Code § 1714(a).

Second, Col. Scott has presented evidence that Bulova’s conduct is indeed outrageous. 

As set forth in Col. Scott’s declaration, Bulova’s conduct caused him to be “very upset,” that 

he has suffered emotionally because “people may now believe I have abandoned my private 

life in favor of commercially promoting products which is not how I wish to be perceived by 

the public,” and that he feels “humiliated, embarrassed, and mentally distressed because of the 

new public persona Bulova and Kay’s have forced upon me; an Apollo astronaut that endorses 

products, let alone a cheap and deceptive product.” (Scott Dec. at ¶¶10-15.)

Third, Plaintiff’s claim for Negligence is not duplicative because it requires distinct 

elements and may be proven by different or fewer facts. The elements for Negligent Infliction 

of Emotional Distress and Negligence are distinct. Compare CACI 400 with CACI 1620.

V. CONCLUSION

Plaintiff has provided adequate evidence and/or legal argument to support all eight of 

his pending claims. Summary judgment should therefore be denied.

DATED: December 28, 2017 MEZZETTI LAW FIRM, INC.

__/s/ Robert L. Mezzetti, II_________

ROBERT L. MEZZETTI, II

CERTIFICATION

I, Robert L. Mezzetti, II, am the ECF user whose ID and password are being used to file 

this Stipulation in compliance with Local Rule 5-1(i)(3). I hereby attest that the concurrence of 

the filing of this document has been obtained from each of the other signatories indicated by a 

conformed signature (/s/) within this document.

DATED: December 28, 2017 By: __/s/ Robert L. Mezzetti, II_________

 ROBERT L. MEZZETTI, II

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