The Mystery of the Ebola Free Doll
Ladies and Gentlemen: I present to you Nurse Case E, the Ebola Free Doll. You may have been too busy to notice, but this unique doll (aka, “Ebola Nurse Action Figure) went on sale late last year as Ebola riveted our nation and the world. The doll’s producer, a company called HeroBuilders, prides itself on creating relevant pop-culture toys.[i] One could say this company leverages the proverbial phrase “truth is stranger than fiction” when it comes to action figure toys. To be sure, company owner Emil Vicale confirmed that inspiration for the Case-E doll was based on current events.[ii] Not only is this doll socially relevant, she is quite interesting in appearance (really, do take note of the photo above) and comes complete with a health certificate that she is “100% Ebola Free.” I know, this is all very exciting, and the certificate so reassuring, but please finish reading my article before making a purchase.
Like you, I’m slightly late in stumbling onto this little gem; however, it’s not the doll itself or its less-than-catchy name that piqued my interest. It’s the doll’s appearance that stopped me in my tracks and caused me to say “hmmm.”
A little back-story: during the Ebola scare, an outspoken nurse named Kaci Hickox made national news after disputing quarantine requirements imposed on healthcare workers returning from treating Ebola patients in Africa. Kaci exhibited no Ebola symptoms, so she saw no reason to be quarantined in New Jersey upon landing at Newark Airport or to comply with a 21-day home quarantine imposed by her home state of Maine.[iii] And, of course, she threatened to sue.
The action figure doll “Case E” bears a striking resemblance to nurse Kaci Hickox, shares the same pronunciation of her name, and likewise proclaims to be Ebola-free. The one major difference: that disturbing scarlet letter “X” inexplicably placed over the action figure doll’s eye.
Owner Emil Vicale says the doll was largely influenced by another company, Giantmicrobes, that manufactures plush toys based on the Ebola strain.[iv] We’re talking Ebola dolls, Ebola Petri-dish toys, etc. — who knew there was a market for this? But Mr. Vicale, you did not mention that the action figure doll was inspired by something, or someone else. I don’t know, but for some reason, the person named Kaci Hickox, the Ebola nurse who made national news headlines, immediately comes to my mind. I could be wrong though, because Vicale claims he does not know who Kaci Hickox is.[v] For a company whose business is based on leveraging pop news trends, this a bit suspicious. Then again, truth can be stranger than fiction.
There has been no legal dispute surrounding the creation and distribution of Case E, but I’d be surprised if one does not surface. Ms. Hickox, this is where you may want to pay attention. In our complicated – but very connected – world, there is a thing called the right of publicity. In general, this is the right to control one’s name, likeness, and identity from being used by others for advertising or commercial purposes.
Most often we see well-known public figures invoking this right when their images, voices, etc. are used without their permission to promote products or companies. Right of publicity, however, is not limited to celebrities. Much depends on the laws of a specific state. One could make a strong argument that Ms. Hickox rises to the occasion of being construed as a public figure, even if only a limited one. After all, she made national and international news headlines; photos and interviews of her can still be readily found through simple searches. While she is no J-Lo or J-Law, an argument can be made that she was, or is, in fact a public figure.
Public figure status or not, the action figure doll is unquestionably similar to Kaci.
From the wavy red hair to the facial structure, the likeness is uncanny. So, the key questions to ask in determining whether there is a claim of right of publicity are: 1) was the Plaintiff identifiable, 2) did the Plaintiff authorize the use and 3) was the use for the Defendant’s advantage?
In my opinion, 1 and 3 are pretty strong contenders in Ms. Hickox’s favor. First, if you do a side-by-side comparison of the doll and Ms. Hickox, it is difficult to believe the statement by the HeroBuilders president that he did not know who Kaci Hickox was. Additionally, any reasonable person seeing the doll could logically assume that it portrays Ms. Hickox, and even assume she endorsed its use. As to the third point, while I’m flabbergasted there is a market for Ebola-related dolls, it is clear that HeroBuilders received an economic advantage – as of November 2014, there were 500 dolls for sale, and more will be expected to be in stock this month.[vi] In the end, the real questions are: does Kaci Hickox know about this doll, did she consent to its creation and distribution, and, more importantly, who is buying it?
As their defense to a right of publicity claim, HeroBuilders can continue to assert that any similarity in appearance is merely coincidental. This argument may not be persuasive given Vicale’s public claim that HeroBuilders, “try and follow the news trends.”[vii] Another defense, of course, is that Ms. Hickox has actually been involved with the sale of her likeness action figure.
The latter might explain why the nurse who only recently wanted to take New Jersey and Maine to court over her rights has not come up on the net over HeroBuilders selling her doppleganger (especially with that appalling scarlet letter X).
What do you think?
Header Photo courtesy of: http://herobuilders.com/