## Facts

- Mark Brill, an Oklahoma stock car driver and business owner, alleged he had driven a red race car bearing the yellow number 95 since 1995 and had used the car’s image to promote his racing and businesses since 1996.
- Brill’s vehicle was a modified Chevrolet Monte Carlo with asserted design features including a long hood, swept-back windshield, a distinctive tail fin, and dirt-track tires.
- Defendants produced the animated film *Cars*, featuring “Lightning McQueen,” a fictional, anthropomorphic red race car with the yellow number 95 and a large lightning-bolt graphic, fictional sponsor decals, and a face formed by the windshield and grille; the character had no human driver.
- Brill sued The Walt Disney Company, Pixar, and related defendants, alleging that Lightning McQueen appropriated his identity and exploited his racing persona and goodwill.
- Brill asserted claims for common-law misappropriation/right of publicity, statutory right of publicity under 12 O.S. § 1449, common-law trademark infringement, unfair and deceptive trade practices under 78 O.S. § 53(A), unjust enrichment, and conspiracy.
- The trial court considered materials beyond the pleadings and entered judgment for defendants; on appeal, the decision was treated as summary judgment.

## Issues

1. Whether the Lightning McQueen character constituted an actionable use of Brill’s “likeness” or “identity” under Oklahoma common law or 12 O.S. § 1449.
2. Whether the alleged similarities supported common-law trademark infringement or a claim under Oklahoma’s unfair and deceptive trade practices statute.
3. Whether unjust enrichment and conspiracy could stand absent an underlying actionable misappropriation, infringement, or deceptive practice.

## Decision

- The Oklahoma Court of Civil Appeals affirmed judgment for defendants, treating the ruling as summary judgment.
- The court held Brill failed to present evidence creating a genuine issue of material fact that Lightning McQueen appropriated Brill’s likeness or identity.
- The court rejected the statutory right-of-publicity claim because the character design did not use Brill’s name or likeness in a manner covered by 12 O.S. § 1449.
- The court found insufficient proof that the “red car plus number 95” functioned as a protectable source identifier for Brill or that consumers were likely to be confused as to affiliation or sponsorship.
- Because the primary theories failed, the derivative claims for unjust enrichment and conspiracy also failed.

## Legal Principles

- A right-of-publicity/misappropriation claim requires appropriation of attributes that are sufficiently identifying such that the public would recognize the plaintiff from the challenged use.
- Generic or commonly used features (such as a car color and racing number), without evidence of public association with the plaintiff, are not enough to establish misappropriation of identity.
- Oklahoma’s statutory right of publicity (12 O.S. § 1449) requires an unauthorized use of a person’s name or likeness for advertising or trade; a fictional character design lacking a direct identification with the plaintiff is insufficient.
- Common-law trademark and related unfair-practices theories require evidence that the asserted mark or trade dress signifies source and that the defendant’s use is likely to cause consumer confusion.
- Derivative claims (unjust enrichment, conspiracy) fail when the plaintiff cannot establish an underlying actionable wrong.

## Conclusion

The court affirmed summary judgment for defendants because Brill offered no evidence that audiences would identify Lightning McQueen as Brill or that the shared elements of a red race car and the number 95 created protectable rights or likely confusion; without an underlying violation, the related enrichment and conspiracy claims also failed.


Brill v. Walt Disney Co., 246 P.3d 1099 (Okla. Civ. App. 2010)