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Andy Griffith v. Andy Griffith:

William Fenrick ran for sheriff on a "back to Mayberry" platform:

During his campaign, defendant publicly stated that he believed an area of concern in Grant County was speed traps. He specifically referenced plaintiff and Mayberry in expressing his distaste for such law enforcement practices. For example, defendant stated "[t]hey never did that in Mayberry! They never did unethical stuff like that in Mayberry. See, that's the thing about Andy Griffith. He was honest and straightforward and people respected him for that."

In fact, he went so far as to change his name to Andy Griffith, and "used the slogan 'Andy Griffith for Sheriff' on t-shirts, yard signs, wristbands, ... and other items," including -- in a twist likely lacking precedent in the TV show -- "condoms."

The original Griffith sued, claiming Andy-come-lately's actions (1) were likely to confuse the public (and thus violated the federal Lanham Act), (2) would dilute the value of the original Griffith's trademark in his name, (3) violated state trade name infringement common law, and (4) state right of publicity law (see § 995.50(2)(b)).

No dice, the court said. As to confusion, "There is not a scintilla of evidence that anyone thought plaintiff was running for Grant County sheriff or that plaintiff was backing defendant's campaign for sheriff." As to dilution, federal dilution law expressly exempts "[n]oncommercial use[s]," and use in a political campaign should be considered noncommercial. As to the state law claims, "it can be determined to a legal certainty that his damages could not reach $75,000," so the federal court lacks jurisdiction of those claims (and ought not exercise continuing supplemental jurisdiction, based on the now-dismissed federal claims).

The original Griffith may still refile the state claims in state court, though I doubt they will succeed. The candidate's use of the name likely won't be found to be "for advertising purposes or for purposes of trade," which is required for liability under the right of publicity statute. I suspect Wisconsin state trade name law likewise requires commercial use (beyond what is involved in campaigning for a paid government office); but even if I'm mistaken on that, the First Amendment should protect Griffith's speech notwithstanding what state law may say.

Thanks to Patrick Ishmael for the pointer.

Marc in Eugene (mail) (www):
I confess to my surprise that this pol is from Wisconsin and not W. Virginia or N. Carolina. Did he pledge to hire Barney Fifes and Gomer Pyles as deputies?
5.8.2007 10:03pm
Jeff F (mail):
not to mention that Andy Griffith was the actor who played the lead role in the TV show. Griffith did lots of things to be a celebrity for, but he was never a Sheriff of any small town. The fictional character he played on his show was named "Andy Taylor". His "son", played by Ronnie Howard, who grew up to be award-winning film director Ron Howard, was Opie Taylor, not "Opie Griffith". I guess Dan Quayle was not the only politician who couldn't tell fact from fiction.

The young actor Andy Griffith made a major splash with his lead role in Elia Kazan's 1957 film "A face in the crowd." IMBD's plot summary comments: "as he becomes drunk with fame and power, will he ever be exposed as the fraud he has become?"
5.8.2007 10:51pm
PDXLawyer (mail):
I was surprised at this at first, because it seems to be trading on the original Andy's name and persona. But on reflection, since its politics, I think its OK.

He's saying, "I'll follow the policies of the fictional sheriff of Mayberry." Is this any different than adopting Ayn Rand's philospohy by embracing "Atlas Shrugged"? Or, for that matter, is it any different than Joe Lieberman saying in his Senatorial campaign that he is a Democrat? If the Dems didn't have a beef against Lieberman, I can't see the original Andy having one here.

On a related note, I heard a news report about a speech Fred Thompson gave. When he was introduced, the band played a few bars from the theme music for "Law and Order," just enough to call the TV show to mind. I don't know if Thompson or the event promoters had a license for this. Assuming they didn't wpould *that* have been fair? Seems a harder case to me, though I'm not sure why.
5.8.2007 10:52pm
Jay D. Homnick (mail):
The complexity would tie an Oxford don in knots.

Apparently RFD stands for Really Frivolous Demands. Is there a greater compliment than a guy changing his name to yours and using you as a model of probity?
5.9.2007 11:37am
CJColucci:
So who represented the plaintiff, Ben Matlock?
5.9.2007 11:47am