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Duffey v. Twentieth Century Fox Film Corp.

United States District Court, S.D. New York

March 27, 2014

TODD DUFFEY, Plaintiff,

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[Copyrighted Material Omitted]

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For Todd Duffey, Plaintiff: Randall Scott Newman, Randall S. Newman P.C., New York, NY.

For Twentieth Century Fox Film Corporation, Library Publications, Inc., Defendants: Jonathan Zavin, Wook J Hwang, Loeb & Loeb LLP, New York, NY.


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J. PAUL OETKEN, United States District Judge.

This is a case about the sale of merchandise relating to the movie Office Space, a 1999 cult classic about the soul-crushing experience of working under incompetent management. The merchandise at issue is the Office Space " Box of Flair," a product that was sold to consumers beginning in 2007. " Flair" refers to buttons that waiters in the film must wear as a mode of corporate-mandated self-expression. The front of the Box of Flair includes an image of a waiter in the film who wholeheartedly embraces these buttons as a means to express himself. The actor who played that character, Plaintiff Todd Duffey, claims that this use of his image is unauthorized and is likely to mislead consumers into believing that Duffey is personally affiliated with the Office Space Box of Flair. Defendants move to dismiss this case for failure to state a claim. For the reasons that follow, Defendants' motion is granted.

I. Background

Duffey alleges the following background facts in the operative complaint. The court accepts these facts as true for the purposes of this motion. Michael Coppel Promotions Pty. Ltd. v. Michael Bolton, 982 F.Supp. 950, 953 (S.D.N.Y. 1997). This summary of the facts also references two contracts and the Box of Flair itself, all of which are integral to the operative complaint.[1]

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In 1998, Duffey, a resident of Texas, agreed to portray the character " Chotchkie's Waiter" in Office Space. Duffey's scenes were filmed in Texas. The terms of his employment were memorialized in a one-page Day Player Agreement with Cubicle, Inc., the production company behind Office Space. (Zavin Decl. Ex. H (Day Player Agreement), Dkt. No. 10-8.) The Day Player Agreement granted Cubicle " all rights throughout the universe" to Duffey's performance, including the right to use pictures from his performance for commercial purposes in connection with his performance.[2] Id. The Day Player Agreement also specified that Duffey's employment would be in accordance with a schedule appended to a collective bargaining agreement between the Screen Actors Guild and Cubicle (" SAG Agreement" ). The schedule details specific conditions of employment for " day performers," such as a minimum wage, mandatory rest periods, meal periods, and miscellaneous duties for which a performer is entitled to reimbursement. (Zavin Decl. Ex. J-2 (Schedule), Dkt. No. 10-11.)

Cubicle subsequently conveyed its interest in Office Space to Defendant Twentieth Century Fox Film Corporation.[3]

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Fox released Office Space in February 1999; about eight years later, Fox granted Defendant Library Publications, Inc. (doing business as " Running Press" ) a license to use images of Duffey's performance on consumer merchandise. Running Press began selling the Box of Flair in 2007.

The Box of Flair contains fifteen pieces of flair,[4] one of which features an image of Duffey performing as Chotchkie's Waiter. Duffey is wearing a Chotchkie's uniform and thirty-seven pieces of flair, enthusiastically pointing off-camera with both hands. The box also includes a booklet describing each piece of flair. The description of the piece of flair featuring Duffey's image states that " Brian is the über-cheerful waiter at Chotchkie's who has no problem expressing himself," and suggests that wearing this piece of flair is appropriate if you wish to communicate that " [y]ou have been completely brainwashed by the work training video." The exterior of the Box of Flair itself is covered with a collage of the pieces of flair. The piece of flair with Duffey's image is featured most prominently in the upper-left-hand corner of the front face of the box, next to the title " The Office Space Box of Flair."

Duffey learned about the Box of Flair in 2010. Three years later, in January 2013, he requested that Running Press provide him with an accounting of Box of Flair sales. After Running Press refused, Duffey filed this action in February 2013. He

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claims that the use of his photograph on the Box of Flair constitutes false endorsement under the Lanham Act, 15 U.S.C. § 1125(a). Cf. Swingline, Inc. v. Staple Ctr. Mfg. Corp., No. 86 Civ. 7878, 1989 WL 24115 (N.D.Ill. Mar. 13, 1989) (finding prominent use of Swingline mark on competitor's staple packages likely to deceive consumers). In the alternative, Duffey claims that Defendants have breached the SAG Agreement. He seeks (1) money damages; (2) a permanent injunction (a) directing Defendants to destroy any merchandise featuring his photograph and (b) prohibiting Defendants and any party acting in concert with Defendants from using his photograph on consumer merchandise; and (3) a declaratory judgment that his claims are not subject to the SAG Agreement. Defendants have moved to dismiss the complaint for failure to state a claim.

II. Discussion

A. Legal Standard

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