Duffey v. Twentieth Century Fox Film Corp.

District court dismisses false endorsement and breach of contract suit brought by actor in film Office Space, finding that actor had contractually granted to the film’s producer merchandising rights associated with the film.

The 1999 film Office Space is a cult classic comedy about the soul-crushing experience of working under incompetent management. This theme is played out in the cubicle-filled office space of a software company called Initech and at the fictional restaurant Chotchkie’s. The plaintiff had a minor role in the film – that of an unnamed, over-enthusiastic waiter at the Chotchkie’s restaurant. In the film, waiters are forced to wear “flair,” or ornamental buttons suggestive of good cheer. Defendant Twentieth Century Fox Film Corporation distributed Office Space and acquired all relevant rights from the film’s producer. Fox later licensed some of its merchandising rights to a company that in 2007 began selling a product named “Box of Flair,” which contained buttons similar to those worn by the waiters in the film. The front of Box of Flair contained a small image of the plaintiff performing as the waiter, and one of the 15 buttons inside the box contained this same image. Plaintiff objected to this use and sued for false endorsement under the Lanham Act and breach of contract and also sought declaratory judgment concerning his rights.

Fox moved to dismiss the complaint for failure to state a claim, and the court granted the motion. The court first concluded that the dispute was governed by a Day Player Agreement plaintiff signed rather than the Screen Actors Guild collective bargaining agreement that neither the plaintiff nor the film’s production company had signed. The court next determined that Texas state law governed the parties’ dispute, in part because plaintiff lived in Texas during the filming of Office Space. Turning to the substance of plaintiff’s claims, the court found that the Day Player Agreement signed by plaintiff unambiguously conveyed “all rights throughout the universe” connected to his performance, including the right to use pictures from his performance for “commercial purposes.” In light of the unambiguous contractual terms, the court rejected plaintiff’s contention that “industry custom” required a separate merchandising agreement in order to transfer those rights.


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