“Personality Rights” and Mars Argo: Why Margo Has a Case

By a fan of That Poppy and Titanic Sinclair

Disclaimer: I am not a lawyer. The following is based on my research and is a non-professional

interpretation of Personality Rights in the state of California. The following is regarding the
Intellectual Property portion of the Lawsuit and not at all regarding the Domestic Violence charges.

Introduction

A YouTube lawyer by the name of “​Rekieta Law​” broke down the case of Mars Argo vs. Titanic
Sinclair and Poppy in which he claimed that Mars Argo is unlikely to win Copyright Infringement due
to lack of evidence that the work of the Poppy Project is derivative of the Mars Argo Project ​[1]​. He
also claimed that one cannot steal a personality or affect. I will attempt here to show why his claims
aren’t necessarily true, and why Mars Argo may have a change to successfully litigate Titanic and
Poppy on copyright infringement.

On Personality Rights

Nick Rekieta or “Rekieta Law” claims that one cannot steal a personality. This is untrue, depending 
on the State in which one lives and works. According to Wikipedia’s explanation of P ​ ersonality Rights 
in the United States​:  
 
“Because the right of publicity is primarily governed by state (as opposed to federal) law, the
degree of recognition of the right of publicity varies significantly from one state to the next.
The ​Lanham Act​ governs federal protection of personality rights, and the doctrine has much
in common with the laws defining federal protection of trademarks.​[34]​ In fact, an individual’s
identity could be considered their personal “mark”, the misappropriation of which is sufficient
to constitute infringement.”

Also according to Wikipedia:

“Courts will typically consider eight factors when weighing a false endorsement claim, in
order to determine the likelihood of consumer confusion:
1. the strength of his mark.
2. the degree of similarity between the two marks.
3. the proximity of the products/services.
4. the likelihood that the prior owner will bridge the gap.
5. actual confusion.
6. the defendant's good faith in adopting its own mark.
7. the quality of the defendant's product.
8. the sophistication of the buyers.”
As Personality Rights are dependent on jurisdiction, I have found a resource on Personality Rights in
the State of California:

“All that needs to be proven are the use of your identity, that is, the use of your name or
likeness, the defendant’s advantage in using it, your lack of consent and injury. (Note, this is
different from identity theft where a person uses your identity in a criminal manner to obtain
credit in your name or empty your bank accounts and the like).

The basis for this right of publicity is the idea that every person should have the right to
control how their identity or likeness or personality, or voice, name or image is
commercialized by others.” ​[2]

I believe that Mars Argo will have the most difficulty in proving the first condition stated: “the strength
of her mark.” The reason she will have difficulties with this is that she may not be considered well
known enough for there to be damages. There may however be precedence in the state of California
on the flexibility of the term “well known.”

On Precedence in the State of California

In the suit ​Waits vs. Frito-Lay​, musician and singer Tom Waits was successfully awarded damages
in the amount of $2.6 million when the court found that Frito Lay intentionally recreated his likeness
for a Doritos commercial. In this case, Prosecution demonstrated that Frito Lay misappropriated the
distinctive voice of Tom Waits for the purpose of selling commercial goods. ​[3]

According to ​subsequent court documents​, a copywriter played the song to Frito-Lay

executives to “demonstrate the feeling the commercial would capture.” Frito-Lay approved.

Tracy-Locke auditioned a number of haggard-voiced, bluesy singers, and a recording

engineer recommended Stephen Carter, a Dallas musician who had performed Waits songs
for years and even did an impersonation of the singer.

“When Carter auditioned, members of the Tracy-Locke creative team ‘did a double take’ over
Carter's near-perfect imitation of Waits, and remarked to him how much he sounded like
Waits,” the court filings reveal. “In fact, the commercial’s musical director warned Carter that
he probably wouldn't get the job because he sounded too much like Waits, which could pose
legal problems. Carter, however, did get the job.”

Tom Waits suggested that Frito Lay also misappropriated his image in the commercial:

He mocked the ad as a “corn chip sermon” and said it was the equivalent of someone
reconstructing his face: “All the scars, dimples, the lines all being in the same place.”
The case of Tom Waits evoked a similar lawsuit ​Midler v. Ford Motor Co ​in which it was found that
Ford had intentionally used the distinct voice of Bette Midler to sell motor vehicles:

Waits vs. Frito-Lay was the first test of the Midler decision. Frito-Lay's lawyers argued that
Waits was not nearly as famous as Midler, and that the precedent didn't apply. The court
disagreed, saying that "well known" is relative, and that a "great weight of evidence produced
at trial indicates that Tom Waits is very widely known." Waits was awarded $2.6 million in
damages. ​[4]

Frito-Lay’s defense claimed that Tom Waits was not “well known.” The finding of the court on the
term “well known” is crucial to Mars Argo’s case:

The defendants next object to the district court's instruction concerning the element of
"widely known" on the ground that it was too vague to guide the jury in making a factual
determination of the issue. The court instructed the jury: "A professional singer's voice is
widely known if it is known to a large number of people throughout a relatively large
geographic area." (Emphasis added.) The court rejected an instruction proposed by the
defendants, which reflected their contention at trial that Tom Waits is a singer known only to
Music insiders and to a small but loyal group of fans: "A singer is not widely known if he is
only recognized by his own fans, or fans of a particular sort of music, or a small segment of
the population. "
The legal underpinnings of this proposed instruction are questionable. The defendants
assert that because Waits has not achieved the level of celebrity Bette Midler has, he is not
well known under the Midler standard. We reject this crabbed interpretation of Midler. The
defendants' proposed instruction would have excluded from legal protection the voices of
many popular singers who fall short of superstardom. "Well known" is a relative term, and
differences in the extent of celebrity are adequately reflected in the amount of damages
recoverable. Moreover, even were these instructions inadequate in some regard the error
would be harmless, for we agree with the district court that the "great weight of evidence
produced at trial indicates that Tom Waits is very widely known." ​[3]

To me, the most important excerpts from this passage are “Tom Waits is a singer known only to
Music insiders and to a small but loyal group of fans: "A singer is not widely known if he is only
recognized by his own fans, or fans of a particular sort of music, or a small segment of the
population” and "Well known" is a relative term, and differences in the extent of celebrity are
adequately reflected in the amount of damages recoverable.”

The Potential Relevance of ​Waits vs. Frito-Lay​ for ​Brittany Sheets Vs. Corey Mixter, Titanic
Sinclair Productions, Inc., and Moriah Rose Pereira
Both Waits and Midler sued for companies misappropriating their unique voices in order to sell a
product. These cases are notably different from Mars Argo’s case in that she is not suing for likeness
of her voice alone but rather her entire affect or public persona. The Argo case is similar in that she
is suing for damages where Poppy and Titanic allegedly profited off her intellectual property.
Prosecution might refer to cases such as these or possibly these very cases to show that
distinguished features of Argo’s affect are personal property and as such are covered under the
copyright of Mars Argo. They could evoke ​Waits vs. Frito-Lay​ to argue that “well known” is a relative
term and that Argo was well known enough on the internet to register as a distinctive personality.
They may also point out that she and Titanic were just as internet famous as Poppy when the Poppy
project started gaining momentum, which made her “well-known” relative to Poppy at a certain point.

How ​Waits vs. Frito-Lay​ Shows That a Person’s Affect is Not Necessarily Meaningfully
Derivative of Other Works

Nick Rekieta claims in his video that it is not clear whether Poppy is derivative or Mars Argo when 
Mars Argo is derivative of general pop culture. For example: he claims that Mars Argo does not own 
the idea of a white bubble bath with a pink backdrop, that she does not own the image of blood 
coming out of someone’s mouth, and (convincingly) that she does not own the clothes pictured [​ 1]​. 
He also claims the pictures are not similar enough to be copy-cats. That is up for the court to decide. 
The claim of Rekieta’s that I disagree with is that Mars Argo does now own being a kawaii creepy 
doll-like pop princess. To me, this is similar to saying Tom Waits does not own being a 
gravelly-voiced blues singer who dresses in suits and bowler hats. The implication is that she does 
not own the property of her persona. I disagree, and I believe I’ve demonstrated here that she 
plausibly could own the property of her persona due to Personality Rights. 

Conclusion

The court filing for ​Brittany Sheets Vs. Corey Mixter, Titanic Sinclair Productions, Inc., and
Moriah Rose Pereira ​claims the following:

As a copyright owner, Ms. Sheets is entitled to exclude others from

15 creating work based on Mars Argo’s copyrighted work. ​[4]

Argo is suing for Copyright Infringement, Common Law Right To Publicity [what has here been
referred to as “Personality Rights”], and Violation of California’s Unfair Business Laws.This basically
means she is saying they used the copyrighted material of Mars Argo without her permission, they
mimicked and stole her public persona, and in doing so they presented an unfair competition for
Mars Argo in the city and state in which they all live.

Argo’s lawyers will need to demonstrate that there was consumer confusion due to the eight factors
aforementioned in ​On Personality Rights​ and that Poppy and Titanic knowingly and intentionally
sought to profit from the intellectual property of the Mars Argo persona and Sheets’s unique
contributions such as photography style. They also must demonstrate that Brittany Sheets offered
sole and unique contributions to the Mars Argo project. I agree with ​Nick Rekieta that​ these things
may be difficult to prove barring evidence unknown to the public via the court filing. The filing does
provide evidence, but it may be viewed as weak in the eyes of the court. ​If her evidence is found to
be strong or if stronger evidence is presented, I believe she has a shot at proving some of
these charges and winning damages.