Famed test pilot Charles “Chuck” Yeager has won another undeserved victory in his publicity rights lawsuit against AT&T as a California judge ruled, in effect, that his breaking of the sound barrier is a protectible intellectual property asset.

U.S. District Judge Frank C. Damrell dashed AT&T's hopes of avoiding a trial in a decision that inexplicably grants a historic achievement the same legal protection as an artistic work or a consumer product. Yeager sued Cingular Wireless (now AT&T Mobility) in 2007 after it issued a press release that compared the breaking of the sound barrier to the launching of a new cell phone service.

“[T]he context of the communication and the nature of the information conveyed demonstrate that plaintiff Yeager’s name and accomplishments were used to attract attention to defendant’s unrelated wireless services,” Damrell said in denying AT&T's motion for summary judgment.

AT&T had asserted First Amendment and “incidental use” defenses, arguing that Yeager should not be allowed to “assert a monopoly on all mentions of a historic event.” Damrell also allowed him to proceed on his “false endorsement” claims under the Lanham Act -– even though his evidence of consumer confusion is “somewhat vague.”

Yeager's wife testified in a deposition that she spoke to people “who believed he was affiliated with AT&T” but was unable to identify any of them.

Early in the litigation, Damrell denied AT&T's motion to dismiss the case. His latest decision could also help Yeager in a similar case he filed in September against computer chip maker Advanced Micro Devices (NYSE: AMD) over its sales pitch for a new product.

In its press release, Cingular suggested Yeager's breaking of the sound barrier was comparable to the breaking of “another kind of barrier with our MACH 1 and MACH 2 mobile command centers, which will enable us to respond rapidly to hurricanes and minimize their impact on our customers.”

“[T]he Publication’s sole purpose was to promote defendant’s  services,” Damrell said, and “Where a plaintiff’s identity is used, without consent, to promote an unrelated product, such speech is actionable.”

He cited a case in which the 9th U.S. Circuit Court of Appeals said two surfers could sue a clothing company for using a photograph of them in a catalog without their permission. Downing v. Abercrombie & Fitch, 265 F.3d 994 (2001). But Cingular did not use a photo of Yeager in its press release and used his name only in connection with an achievement that is part of the public domain.

Citing Pooley v. National Hole-In-One Ass’n, 89 F. Supp. 2d 1108 (2000), Damrell concluded that “the use of [Yeager's'] name and identity uniquely enhanced the marketability of defendant’s service.” But that case is also distinguishable because it involved the use of a professional golfer's actual image in a marketing video.

Yeager's “evidence” includes the report of an expert witness –- talent agent Jon Albert -– who said that associating Cingular's hurrricane response service with the breaking of the sound barrier might help pique the interest of a newsman. Any self-respecting newsman would be more likely to recognize the release for the puffery it obviously was.

AMD's press release said that “Just as the achievement of Chuck Yeager signaled the beginning of a new era in aviation, the 1GHz processor ushers in a new era of information technology.” Yeager's case against AMD is pending in Santa Clara County (Calif.) Superior Court.

By Matthew Heller
12/13/09