Martin Luther King, Jr. Center For Social Change v. American Heritage Products

296 S.E. 2d 697 (GA 1982)

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Nature of the Case

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Facts

Bolen (D) is the sole proprietor of a business known as B&B Sales, which manufactures and sell various plastic products as funeral accessories. D developed a plastic bust of Dr. Martin Luther King Jr. and formed B&S Enterprises to sell them. B&S was later incorporated under American Heritage (D1). D sought endorsement from the Center for Social Change (P), but they refused. D proceeded anyway and even took out ads claiming that it was an exclusive memorial and an opportunity to support P. The ad stated that a part of the sales price goes to P. Out of the $29.95 price, D testified that he set aside 3% as a contribution to P. D also inserted pamphlets in newspapers across the country with the same message as his Ebony ad. The pamphlet promised that each memorial would be accompanied by a Certificate of Appreciation for the monies paid to P and had excerpts from copyrighted speeches. D testified at trial that he created a trust fund for the money to be given to P. The trust was never executed but D claims that was due to a cease and desist notice from P’s attorneys. D did tender money to P, but it was refused. As of the date of the preliminary injunction, D sold 200 busts and had orders for 23 more. In November 1980 and again in December, P demanded that D cease and desist. P sued on December 31, 1980, and sought an injunction as well. D agreed to discontinue the use of P’s name. The district court found that D infringed the King copyright and enjoined all further uses of the copyrighted material. The court then directed its attention to the claim that the manufacture and sale of the busts violated King’s right of publicity which had passed to the heirs upon his death. Questions were certified to the Georgia Supreme Court.