MEMORANDUM
TO: Daryl Greppo, Partner
FROM: Law Clerk
DATE: November 22, 2016
RE: Back to Buffalo – file no. 16-43; Writing Assignment 3
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QUESTION PRESENTED
Under New Jersey common law, did Rudy Marlow of Back to Buffalo appropriate the likeness of
Violet Valencia for the purpose of commercial gain for Back to Buffalo, when she posted the
video starring Shelly Valencia to the Back to Buffalo website?
BRIEF ANSWERS
Yes. Rudy Marlow despite having little control over production of the promotional video, is the
owner and representative of a company that knowingly posted a video that used the likeness of
Violet Valencia without her consent for the purpose increasing business within the Back to
Buffalo restaurants.
STATEMENT OF FACTS
In January 2012 Rudy Marlow opened her first Back to Buffalo location. During the first
year of business local celebrity socialite, Violet Valencia, came into the restaurant to seek shelter
from the torrential weather during Hurricane Sandy. While in the restaurant on October 28, 2012
Violet signed a consent form to have her photograph hung on the “Wall of Fame” within the
establishment. In March 2013 Back to Buffalo opened its second location.
In June 2016 Rudy Marlow invested everything she had into opening a third location of
her restaurants. Since she put some much into the new establishment it was critical that the
restaurant succeeded so she hired Chick Rickman to handle the marketing and promotional
aspects of the company. Mr. Rickman immediately launched a Back to Buffalo website.
2
On August 16, 2016 Ms. Marlow and Mr. Rickman met to brainstorm ideas for a
promotional video campaign. During their discussions the came upon the idea of creating a “fish
out of water” concept for the video. This idea would place a person who would not normally be
expected to be eating in the Back to Buffalo establishment, thoroughly enjoying the food product
being served. That same evening Mr. Rickman attended a gala hosted by Violet Valencia’s twin
sister Shelly. At the event Shelly saw that her sister was out partying rather than attending the
gala in order to help her cause. Shelly and Violet have had a tense relationship. Mr. Rickman saw
this annoyance with Violet as an opportunity and approached Shelly to discuss his “fish out of
water” video concept for Back to Buffalo. Shelly was excited by the concept and agreed to film
the video.
On August 29, 2016 Shelly Valencia arrived to film the promotional video for Back to
Buffalo restaurants. She was aware that she would be imitating her sister in the video. She
arrived to the filming of the video in a blonde wig, wearing a little black dress, jewels, and
Violet’s signature “saucy” gold necklace. Ms. Marlow and Mr. Rickman did not ask Shelly to go
this far in taking on Violet’s signature look. This decision on attire was Shelly’s decision. They
filmed the video and it was posted on the Back to Buffalo website on September 3, 2016.
On September 6, 2016 Violet Valencia became aware of the existence of the video.
Between September 23 and September 30, 2016 Violet had clients cancel her scheduled
appearances with her. During that time period she also took to her social media to inform her
countless follows that it was not her in the video. Shelly at no point affirmed publicly that it was
not Violet in the video but rather herself.
3
On October 1, 2016 Violet Valencia had her attorney send Back to Buffalo a cease and
desist letter to have them stop use of the promotional video. The following day Ms. Marlow had
the video removed from her website at the suggestion of this firm.
During the time period that the video was on the website a noticeable influx of web
traffic and sales within the restaurants occurred. Since the removal of the video the traffic on
both the website and within the restaurants have decreased markedly.
Ms. Marlow would like to repost the video to the website since it was proving to increase
business for her and currently with the video removed sales are down. However, the state of New
Jersey has recognized the tort action of appropriation of likeness, under the invasion of privacy
claim. It is likely that if Ms. Marlow reposts this video that Violet Valencia would have a strong
and viable claim for recovery under this tort claim.
DISCUSSION
Ms. Violet Valencia has a convincing claim against Rudy Marlow of Back to Buffalo for
violating her right of publicity. New Jersey courts have recognized the right of publicity under
actions of tort claims for invasion of privacy. If Ms. Marlow were to repost the video in dispute
on the restaurant’s website, Violet would have a strong case against Ms. Marlow in civil court
for the claim of invasion of privacy. New Jersey has recognized the tort action of invasion of
privacy as four separate issues. The one addressed in this case specifically is the invasion of
privacy through the context of appropriation and likeness of another. In order to succeed in
proving the claim of misappropriation of likeness a plaintiff must prove through preponderance
of the evidence that a defendant used the plaintiff’s likeness for a commercial use in order to
gain a benefit and the plaintiff suffered damages from the defendant’s use of their likeness.
Faber v. Condecor, Inc., 477 A.2d 1289, 1294 (N.J. Super. Ct. App. Div. 1984), see also Collins
v. Beauty Plus Trading, Co., No. A-2295-09T2, 2012 N.J. Super. Unpub. LEXIS 633, at *16-19
(N.J. Super. Ct. App. Div. Mar. 23, 2012). In this case, Violet Valencia’s legal representation
will have to show that (1) Rudy Marlow used Violet Valencia’s likeness, (2) without Violet’s
consent, (3) to obtain a commercial benefit, (4) and that Violet suffered damages due to the
appropriation of her likeness. Castro v. NYT Television, 851 A.2d 88, 97 (N.J. Super. Ct. App.
Div. 2004).
First, Violet will have to prove that Ms. Marlow used Violet’s likeness. A plaintiff’s
name and likeness are the sole property of the plaintiff and the use of such name or likeness by
another would constitute appropriation by the defendant. Estate of Presley v. Russen, 513 F.Supp
1339, 1354 (D.N.J. 1981). The general idea is that an individual has ownership of their name and
likeness, which makes them property. That property is protected from invasion by others.
Therefore, a defendant doesn’t have the right to take that property from the owner. Id.
