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Commercial Law (Mgmt 348)

Commercial Law (Mgmt 348). Misappropriation and Business Judgment Rule Professor Charles H. Smith Spring 2011. Introduction to Misappropriation. Misappropriation protects the financial value of commercial exploitation of a person’s identity.

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Commercial Law (Mgmt 348)

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  1. Commercial Law (Mgmt 348) Misappropriation and Business Judgment Rule Professor Charles H. Smith Spring 2011

  2. Introduction to Misappropriation • Misappropriation protects the financial value of commercial exploitation of a person’s identity. • Also sometimes called right of publicity or use of name, picture or likeness for commercial purposes without permission. • Only a well-known person – entertainer, athlete, celebrity – can use this theory since ordinary person’s name, picture or likeness has no financial value and therefore no damages would result.

  3. Misappropriation cont. • Case studies • Shaw Family Archives, Ltd. v. CMG Worldwide, Inc. (pages 1029-31) – Marilyn Monroe. • White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992) – Vanna White (discussed on page 130). • “Tony Twist” case – hockey player (discussed on page 130). • “Guvanator Beer” matter – Arnold Schwarzenegger.

  4. Business Judgment Rule • The business judgment rule acknowledges that an officer or director of a company can fail without being liable in damages to the company. • After all, some risk is incurred in all business matters. • Therefore, actions taken in subjective and objective good faith are protected by the business judgment rule.

  5. Business Judgment Rule cont. • Case studies • In re The Walt Disney Company Derivative Litigation, 906 A.2d 27 (Del. 2006) – Michael Ovitz “golden parachute” matter. • Gaillard v. Natomas Company, 208 Cal.App.3d 1250 (1989) – “golden parachutes” for “inside directors” negotiated during corporate merger.

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