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Donna Douglas played the character Elly May Clampett in all 274 episodes of the hit series The Beverly Hillbillies, which was broadcast for nine seasons from 1962-1971. For some strange reason, last December Mattel decided to release a Collector’s Edition Elly May doll based on the character from the TV series.
Apparently they sold out (or they pulled it from the shelves), as I could not locate any on Mattel’s website. In fact the one depicted here is being offered for $71.77 on Amazon.com! Ms. Douglas, none too pleased with Mattel’s offering of a doll in the likeness of the character she played, filed a lawsuit last week in Federal District Court in the Middle District of Louisiana. The suit alleges that Mattel:[framed_box] . . . is engaging in the unauthorized use of Ms. Douglas’s name, likeness and image, as well as the distinctive attributes of her portrayal of the Elly May character, to promote and sell the “Elly May” Barbie. Mattell’s unauthorized conduct constitutes false endorsement under the federal Lanham Act, violations of Plaintiff’s Louisiana right of publicity, and misappropriation and unjust enrichment under Louisiana law.[/framed_box]
Hmmm. I wonder if Mattel obtained a license from the copyright owner of The Beverly Hillbillies. They must have, right? I mean, how difficult could it be? They’d simply identify the copyright owner and get permission in the form of a derivative work license to make, promote and sell a doll in the likeness of the fictional character Elly May.
Why don’t we see if we can figure it out? The US Copyright Office electronic catalog lists 504 copyright registrations for works titled Beverly Hillbillies. Many of these copyrights are in the name of Filmways TV Productions, while others belong to Orion Pictures Corporation/Orion Television Entertainment. Oddly, many of those owned by Orion list “By Filmways TV Productions, Inc.” as part of the title of the registered work. There are 4 LIVE federal trademark registrations for THE BEVERLY HILLBILLIES, all owned by CBS Broadcasting, Inc. There’s one for apparel, printed matter, slot machines, and my favorite, BBQ sauce. Ok, so it would take several more hours of research to determine who the current owner is (my guess is CBS) but I’m sure Mattel went through this exercise before crafting its Elly May Barbie doll.
Presuming that Mattel obtained a license, we also need to know, what did that license say? It wouldn’t make much sense for it to restrict use of the Elly May character to the doll only. The license must have authorized use of the character in the promotion of the doll, as well as for the doll itself. (What good is a character license without the ability to promote the product — not much!) So if Mattel got a license to use the Elly May character image as the doll and in the promotion thereof, it’s hard to see what Ms. Douglas is complaining about — maybe someone should remind her that she is not Elly May, she just played her on TV.
The suit claims that The Beverly Hillbillies “ranked among the most watched on television during its initial run, and has been broadcast in syndication around the world ever since.” It also states that, “Ms. Douglas is recognized throughout the world for her portrayal of Elly May Clampett, and continues to make public appearances in association with the role 40 years after the show’s final season.” The suit also alleges that the packaging for the doll not only features Ms. Douglas portraying the character Elly May, but that Mattel’s promotional materials use Ms. Douglas’s name without her permission. To that end, Exhibit B to the Complaint is the Manufacturer’s Description of the Elly May doll on Amazon.com, which states:[framed_box]Barbie Collector Bevelery Hillbillies Elly May Doll: Based on the hit television series the Beverly Hillbillies. Howdy. The Elly May Barbie doll portrayed by Donna Douglas in the TV show captures the essence of the classic 60s TV character and show, the Beverly Hillbillies. Elly May Barbie Doll features a vintage face with her trademark hairstyle and ribbon details. Sporting a gingham shirt, denim jeans and espadrilles, Elly May Barbie doll also comes with her infamous slingshot.[/framed_box]
I’m not sure why Mattel mentioned Ms. Douglas on its packaging. That seems unnecessary and highly risky in light of right of publicity laws. It is possible that Ms. Douglas’s acting contract included a waiver of her publicity rights in connection with the Elly May character and that those rights were transferred with the property throughout the years. Apart from the mention of Ms. Douglas’s name on its packaging, Mattel’s use appears to be permissible, licensed use of a copyrighted character, Elly May, not a breach of Ms. Douglas’s individual right of publicity. The mention of Donna Douglas on its packaging may have crossed the line into false endorsement / infringement on Ms. Douglas’s right of publicity, but since Mattel has not yet commented publicly on the case, we may have to wait until it files its answer before we know anything more.
Sometimes obtaining a copyright license isn’t enough. When you want to license a character that is or was played by a real person, it’s safest to obtain permission from both the copyright owner and the actor, lest you find yourself served with a lawsuit.