Evel Knievel Trademark Stunt Falls Short: Disney’s Toy Story 4 Character Found Non-infringing
Evel Knievel earned fame as a motorcycle stuntman in the 1970s, performing death-defying jumps and dramatic falls. An Evel Knievel action figure, featuring his iconic white jumpsuit, helmet, and cape adorned with red, white & blue stars, was sold with a red launcher. Disney’s Toy Story 4 was released in 2019 and featured a new toy character called Duke Caboom. The stunt motorcyclist wore a white jumpsuit, helmet, and cape emblazoned with the Canadian maple leaf and is enlisted to make the dangerous jump across an antique store’s aisle to rescue a fellow toy.
Creators of the film acknowledged that Evel Knievel inspired the Duke Caboom character. Disney also manufactured and sold a matching Duke Caboom action figure with a motorcycle and red launcher. K&K Promotions filed suit alleging Disney infringed its intellectual property and violated its right to publicity.
The Court’s Decision
The court found that the Duke Caboom character is artistically relevant and integrally related to the plot of Toy Story 4, and the film does not explicitly try to mislead viewers into believing that Mr. Knievel is associated with or endorses the character. The court, therefore, dismissed the claims of trademark and trade dress infringement, trademark dilution, and false endorsement, holding that there is a stronger public interest in protecting free expression in this case than in protecting against any potential consumer confusion.
With regard to publicity rights, the court noted that while the relevant state right-to-publicity law prohibits unauthorized commercial use of an individual’s “likeness” by another, the law notably permits attempts to portray or impersonate a person in certain artistic works, such as a film, book, play, newspaper or magazine article, or television or radio program. The court, therefore, held that under the state law, the Duke Caboom film character did not violate any right to publicity.
The court’s analysis differed for the Duke Caboom toy action figure, which Disney argued was protected by the First Amendment as a “transformative use.” The court agreed with Disney, finding that the Duke Caboom action figure is “reminiscent” of Evel Knievel, but not a literal depiction given transformative and creative elements, including “a different name, different clothing, Canadian rather than American insignia, the addition of a mustache, and a different hair color and style.” The court noted that features shared by the action figure and Evel Knievel (e.g., jumpsuit, helmet, motorcycle) are shared by many stuntmen. The fact that Duke Caboom was originally a character created within the context of a film, and only secondarily a consumer product whose value is derived from the film, was also persuasive to the court.
If a character or other creation is inspired by a real-life individual, it is advisable to have the design legally reviewed to ensure it includes sufficient differences to avoid liability