(CN) – Two Beer-Pong adepts – a law student and an actor – claim Turner Broadcasting System and Carlsberg Group misappropriated their personae and profited unjustly from a TV commercial in which they perform Beer-Pong trick shots. The student claims that the repeated broadcasts of his “exceptional skill at a drinking game” could complicate his search for a job.
The Beer-Pong plaintiffs say they agreed to appear in the commercial only for Danish TV, but the defendants used it in commercials to promote a “World’s Funniest Commercials” show, and in the show itself.
“Though it is perhaps novel to the court, and understandably so, Beer-Pong is almost universally known, and widely participated in, by the current generation of 18-35 year old Americans, of both genders, notably,” according to the magisterial complaint. “As such, a Beer-Pong-themed commercial has tremendous appeal to the demographic most coveted by TV programmers and advertisers, independent of the additional, even more widespread appeal of difficult trick-shot feats in general.”
The plaintiffs, then-law student Scott Tipton and actor Christopher Kolb, claim that they agreed to appear in the commercial only on Danish TV.
Tipton says he didn’t want potential employers, or his parents or grandparents to see it, and Kolb says he agreed to perform for a reduced rate because of the geographical restriction.
Tipton says he “was wary of achieving any domestic notoriety for exceptional skill at a drinking game.” (Italics in complaint.) “But he chose to take part in the Danish commercial shoot in reliance on the Talentmemo’s clear, restrictive specification of territory, on the theory that potential employer law firms, and his conservative grandparents, would be none the wiser.”
The 26-page complaint in Los Angeles Superior Court, masterfully crafted by Perrin F. Disner, cites an “iconic” scene that Tipton pulled off for the cameras.
“One iconic scene in the Danish commercial featured plaintiff Kolb watching as plaintiff Tipton executes the Danish commercial’s most remarkable trick shot, ricocheting the ping-pong ball four times off of various uneven, angled surfaces, and into the beer cup with backspin, after which Tipton and Kolb celebrate exuberantly (‘ricochet scene’).”
In a lengthy footnote, the plaintiffs’ learned counsel explains: “Beer-Pong is a drinking game of accuracy, entailing the throwing of a table tennis ball, a.k.a. ping-pong ball, from distance, into an opponent’s half-full cup of beer. Each time the thrower is successful, his opponent must drink the beer. There is a measure of skill involved but, as with all drinking games, the objective is that everybody drink substantial quantities of beer, and quickly. And, as with any physical activity, feats of notable skill are plainly indicative of abundant practice at such skill. Thus, plaintiffs’ difficult trick shots indicate substantial experience playing Beer-Pong, i.e., substantial experience drinking substantial quantities of beer – a less than desirable image that one might reasonably prefer not to be widely broadcast.”
But the plaintiffs say the third defendant, Robert Dalrymple Productions, sought, and received permission from Carlsberg to use the Danish commercial in “World’s Funniest Commercials.” Dalrymple then produced the show, which was broadcast in prime time on Aug. 26, 2008. Also, either TBS or Dalrymple, or both, used the “iconic” trick shot in a 30-second commercial for the “World’s Funniest Commercials” show. The 30-second spot “aired over 100 times prior to the August 26 WFC broadcast,” according to the complaint. TBS continued to show the commercial after Aug. 26, and rebroadcast the show as well, according to the complaint.
But neither plaintiff consented to it, and neither was paid for it, they say.
They claim the defendants raked in at least $3 million in profits from using their personae. They seek punitive damages for misappropriation of their likeness, unjust enrichment, negligence, breach of contract, breach of faith, business code violations, mental distress and reckless disregard of their rights of privacy and publicity.
May it please the court.