What Do The Heirs Of A Buxom Barmaid And Buddy Holly Have In Common?

What Do The Heirs Of A Buxom Barmaid And Buddy Holly Have In Common?

The right to publicity and name, image and likeness (NIL) is not limited to college athletics.  The name, image and likeness and right of publicity of an Iowa barmaid and her unique way of serving and filling glasses of beer has resulted in a lawsuit almost 30 years after her death.

Ruthie Bisignano, who owned a Des Moines bar, became well known in the 1950s for being able to fill two glasses of beer on her upper torso while standing up and not using her hands to hold or balance the glasses.  Her unique talent made her a local legend.  Unfortunately, after a couple of decades, her business sagged, and the bar closed in 1971.  She died in 1993 without a will.

An Iowa entrepreneur opened Exile Brewing Company in 2012 using Ruthie’s name and likeness to promote Exile’s new beer called the “Ruthie”.  The labels of the new beer bottles featured a likeness of the buxom barmaid’s unique beer balancing talent.  The “Ruthie” became the best-selling beer of any beer produced in Iowa.  Exile also sold other goods using Ruthie’s likeness and name for its marketing.

The heirs of Ruthie sued Exile in 2020 for the use of her name and likeness without the permission of her estate.  Each state has its own laws regarding the right of publicity after death.  Iowa has a right of publicity law although there is no statutory law that permits the publicity rights after death.  As a result, the heirs are likely to pursue their case as a common law right.  As a result of current trends, the heirs will likely be successful.

Texas has both a statutory right of publicity protection of name and likeness after death (commonly known as the “Buddy Holly Bill”) and a common law protection.  Texas statutory law applies to anyone who died after January 1, 1937, whose identity has a commercial value at or after the time of his or her death.  The right of publicity protection lasts for 50 years after the date of death of the individual.  Protection of the right of publicity includes: (1) the name; (2) the voice; (3) signature; (4) photograph; or (5) likeness of the deceased.  There are some exceptions.  The holder of the right should register the property right claim with the Secretary of State of Texas within 1 year after death, although the owner (who receives by will, trust, contract, or laws of descent) still has the right to publicity (just not presumptive evidence).

Texas’ common law right is used for the protection of an individual’s identity.  Misappropriations of identity is determined if (1) the defendant used the plaintiff’s name for value rather than incidentally; (2) the publication identifies the plaintiff, and the defendant received an advantage or benefit during the lifetime of the individual.

As Buddy Holly probably said to his relatives when asked as to their rights to his name, image and likeness under Texas statutory law – “That will be the day when I die”.

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