If you’ve ever strolled through New York Times Square, you may have encountered Robert Burck, better known as the Naked Cowboy. The Naked Cowboy is a street performer who sings while accompanying himself on a white guitar. He’s called the Naked Cowboy because of his attention-getting costume. He wears a white cowboy hat, white cowboy boots, white briefs, and nothing else. You can view a video clip of the Naked Cowboy’s act here.
In April 2007, the company that manufactures M&M candy began running an animated cartoon advertisement on two oversized billboards located in the middle of Times Square. The animated cartoon features a blue M&M wearing a white cowboy hat, white cowboy boots, white underwear and playing a white guitar. Burck filed a lawsuit against the candy maker alleging that M&M has falsely implied that Burck endorses the product and that M&M has violated his right of publicity.
Although some aspects of this case might seem laughable, it looks like Mr. Burck has a valid right of publicity claim.
The right of publicity allows each individual to control and profit from the commercial value of his own identity. To win a right of publicity claim, a person must demonstrate that his identity has commercial value and that someone used his identity without consent for commercial purposes.
Evidently, the Naked Cowboy’s persona has monetary value. According to the complaint for Burck vs. Mars, Inc., Mr. Burck has auditioned for American Idol and Star Search and licensed his trademarked cowboy image several times including for a Superbowl Chevrolet commercial. He has appeared on USA Networks Characters Welcome campaign, in the PBS documentary Origins, the Rockstar music video, and movies and television programs including Steve Harvey’s Big Time, Lonely Planet, and New York Minute.
