## Facts

- Donald Hugh Henley, a well-known musician, sued Dillard Department Stores over a newspaper advertisement for a “henley” style shirt.
- On September 3–4, 1997, Dillard’s ran an ad featuring a man in a henley shirt with the phrases “This is Don” and “This is Don’s henley,” each paired with an arrow pointing to the model’s head and shirt, plus copy stating “Don loves his henley; you will too.”
- The advertisement ran in newspapers throughout Texas and in Mexico.
- Henley alleged the ad used a deliberate play on words to trade on his identity for commercial gain.
- The ad designer testified the wording was intended as a pun referencing Henley’s name and was selected to create an “eye-catching” ad.
- Henley offered survey evidence that about 15% of respondents believed he endorsed the product.
- Dillard argued the reference was incidental, focused on the product, and did not yield enough sales to cover the campaign’s costs.
- The court considered Henley’s motion for partial summary judgment only on the Texas misappropriation/right of publicity claim.

## Issues

1. Whether Dillard’s use of “This is Don” and “This is Don’s henley” appropriated Henley’s identity in a non-incidental manner for commercial benefit under Texas right of publicity law.
2. Whether the summary-judgment record established the elements of misappropriation such that no reasonable jury could find for Dillard.

## Decision

- The court granted Henley’s motion for partial summary judgment on the misappropriation/right of publicity claim.
- The court held Dillard’s appropriated Henley’s name/identity for advertising purposes in a non-incidental way.
- The court found Henley was reasonably identifiable from the ad’s wordplay, supported by the designer’s testimony and consumer survey evidence.
- The court rejected Dillard’s argument that lack of net profit from the campaign defeated the “benefit” element.
- Other asserted causes of action were not resolved in this decision.

## Legal Principles

- Under Texas law, misappropriation/right of publicity requires: (1) appropriation of the plaintiff’s name or likeness, (2) for the value associated with the plaintiff’s identity and not merely incidental, and (3) for the defendant’s benefit, typically commercial.
- A deliberate pun or wordplay that evokes a celebrity can constitute appropriation of identity when it is used to attract consumer attention and sell products.
- “Non-incidental” use may be shown by evidence that the reference to the celebrity was intentionally chosen as the central advertising hook.
- Commercial benefit focuses on exploitation of the marketing value of the identity, not on proof that the advertisement produced net profits.
- Identifiability may be supported by consumer perception evidence showing that a segment of the public associates the challenged use with the plaintiff.

## Conclusion

The court held Dillard liable as a matter of law for misappropriation/right of publicity because it intentionally used a pun on Don Henley’s name to draw attention to a shirt advertisement, making the use non-incidental and commercially exploitative even without proof of campaign profitability.


Henley v. Dillard Dep’t Stores, 46 F. Supp. 2d 587 (N.D. Tex. 1999)