Forsyth v. Motschenbacher

 

Revenues for Forsyth Tobacco (Forsyth) have been down for the last ten years.  Forsyth’s executives attribute this downturn to two causes:  the federal prohibition against advertising cigarettes on television, and the decline in the number of smokers in the United States.

 

In an effort to boost sales, Forsyth decided to launch a new advertising campaign aimed at people aged forty and over.   Market research showed this age group would be the target audience most likely to buy cigarettes for several reasons.  Unlike those under forty, they grew up during an era when cigarette smoking was quite popular and when the adverse health effects, such as the increased risk of cancer, emphysema and death, were unknown.  Once these risks were known, Forsyth concluded that no sane person would take up smoking.  So, Forsyth secretly plotted to attract older people who once smoked but had given it up.

 

The centerpiece of the campaign were ads designed to make former smokers nostalgic for the days when they smoked.  The advertisements featured images from the 1970’s and 1980’s, linking those images to Forsyth’s products. One such ad displayed a race car which bore a striking resemblance to Lothar Motschenbacher’s.  In an effort to avoid a lawsuit, Forsyth modified the image used by RJ Reynolds in its television ad by removing the word “Winston” from the car’s spoiler, and placing a beautiful woman in the driver’s seat.

 

Stella Motschenbacher, Motschenbacher’s daughter and sole heir to his estate, saw the advertisement and immediately recognized the car as her father’s.  Your assignment is to assess the strength of her claim against Forsyth for violation of the right of publicity.  Your analysis must include arguments for both the plaintiff and the defendant.