## Facts

- Shirley Booth, a well-known actress, portrayed the title role in the “Hazel” television series from 1961 to 1966, a show based on a copyrighted cartoon character owned by Ted Key.
- Colgate-Palmolive marketed “Burst” laundry detergent and retained Ted Bates & Co. to produce radio and television commercials.
- The commercials first aired in January 1971 and used the Hazel cartoon character under a written license from the character’s copyright owner (Ted Key).
- The commercials used a voice actress to portray Hazel; neither Booth nor the voice actress was named or otherwise identified in the advertisements.
- Booth alleged the commercials intentionally imitated her Hazel performance style (tone, inflection, timing, and manner), and sought damages for unfair competition, violation of Lanham Act § 43(a), and defamation.
- Defendants moved for summary judgment, contending there was no genuine dispute of material fact and they were entitled to judgment as a matter of law.

## Issues

1. Whether New York common-law unfair competition recognizes a protectable property right in an actor’s performance style (voice and mannerisms) that can be infringed by imitation where the underlying fictional character is used under a valid license from the copyright owner.
2. Whether the advertisements constituted a false designation of origin or false description/representation under Lanham Act § 43(a) by allegedly implying Booth’s participation or endorsement despite not using her name or likeness.
3. Whether the commercials were defamatory under New York law by making a statement “of and concerning” Booth that tended to injure her reputation.

## Decision

- The court granted defendants’ motion for summary judgment and dismissed the complaint in its entirety.
- On unfair competition, the court held Booth had no protectable property right in the Hazel character or in a broad, exclusive right to her performance style, particularly given the copyright owner’s licensed use of the character.
- On the Lanham Act claim, the court found no actionable false designation or misrepresentation because the commercials did not identify Booth and did not represent that she endorsed or participated in the advertisements.
- On defamation, the court held the commercials contained no defamatory statement about Booth and could not reasonably be understood as being “of and concerning” her.

## Legal Principles

- New York unfair competition law generally protects against misappropriation of a person’s identity (such as name or likeness) and traditional “passing off,” but does not create a general property right in an entertainer’s performance style or vocal mannerisms.
- A performer cannot use state unfair competition doctrine to obtain exclusive control over imitations of performance style that would restrict licensed uses of a separately owned copyrighted character.
- Lanham Act § 43(a) liability requires a false designation or false representation attributable to the defendant; resemblance or audience association alone, without identification or misrepresentation of endorsement, is insufficient on these facts.
- Defamation requires a defamatory statement “of and concerning” the plaintiff; economic harm from alleged loss of endorsement opportunities, without a reputationally injurious statement about the plaintiff, does not state a defamation claim.

## Conclusion

The court entered summary judgment for the defendants, holding that imitation of Booth’s Hazel performance style in commercials using the Hazel character under a valid license did not constitute unfair competition, false designation under the Lanham Act, or defamation under New York law.


Booth v. Colgate-Palmolive Co., 362 F. Supp. 343 (S.D.N.Y. 1973)