## Facts

- A Broadway musical, *A Day in Hollywood/A Night in the Ukraine*, opened in 1980; its second act presented a Marx Brothers-style version of Chekhov’s *The Bear*.
- The production used characters closely modeled on Groucho, Harpo, and Chico Marx through distinctive visual and behavioral traits (e.g., greasepaint mustache and cigar; red wig and horn; mock Italian accent and piano style).
- Plaintiffs claimed ownership of commercial rights in the Marx Brothers’ names, likenesses, and character “styles” through testamentary interests and contractual assignments, including an assignment by Groucho Marx to Groucho Marx Productions.
- Plaintiffs alleged the show appropriated those rights and suggested sponsorship or authorization.
- Plaintiffs asserted claims including right of publicity, Lanham Act § 43(a) false designation/endorsement, and related state-law misappropriation and unfair competition theories.
- The case came before the court on cross-motions for summary judgment; no party demanded a jury trial.

## Issues

1. Whether the right of publicity in performers’ names, likenesses, and recognizable personae is descendible and assignable such that successors may sue after the performers’ deaths.
2. Whether defendants’ use of Marx-like characters in a theatrical production could constitute actionable appropriation rather than protected artistic or parodic expression.
3. Whether summary judgment was appropriate on plaintiffs’ right-of-publicity, Lanham Act, and related state-law claims.

## Decision

- Plaintiffs’ motion for summary judgment was granted in part, limited to the legal determination that the right of publicity is descendible and assignable under the governing law applied by the court and that plaintiffs had standing as successors/assignees.
- Defendants’ cross-motion for summary judgment was denied on the right-of-publicity claim.
- Summary judgment was also denied on the Lanham Act and related claims because material fact disputes remained, including the closeness of the imitation and likely public perception.

## Legal Principles

- The right of publicity protects the commercial value of a person’s identity (name, likeness, and other recognizable aspects of persona) and is treated as an economic, property-like interest rather than a purely personal privacy right.
- As a property-like interest, the right of publicity may be assignable during life and may survive death, permitting enforcement by heirs or contractual assignees where recognized by applicable law.
- Whether a performance appropriates a protected persona, as opposed to using generic “types” or protected expressive imitation, can be fact-intensive and may not be resolvable on summary judgment.
- False endorsement or sponsorship claims under § 43(a) commonly turn on factual questions of audience perception and likelihood of confusion, often precluding summary judgment on an undeveloped record.

## Conclusion

The court held that the Marx Brothers’ publicity rights were descendible and assignable and that plaintiffs could assert those rights, while allowing the core appropriation, false endorsement, and related claims to proceed because disputed facts remained about the nature of the portrayal and its effect on audiences.


Groucho Marx Prods., Inc. v. Day & Night Co., 523 F. Supp. 485 (S.D.N.Y. 1981)