Johnny Cage. See supra; see also DeClemente v. Columbia Pictures Indus., Inc., 860 F. Supp. 30, 52-53 (E.D.N.Y. 1994) (no right of publicity claim where "no reasonable jury can find on the evidence presented that [the plaintiff's] . . . public personality as 'The Karate Kid' was so notorious to the public that it 'had become closely and widely identified with the person who bears it'"). Therefore, since no genuine issue of material fact exists that the defendants infringed Mr. Pesina's right of publicity, I grant summary judgment on Count I.
In Counts II, III, and IV, Mr. Pesina alleges that the defendants' unauthorized use of his likeness, name, and persona caused confusion in the marketplace or a misunderstanding as to the source, sponsorship, approval, or certification of goods and services.
For the purposes of the Lanham Act, Mr. Pesina alleges a so-called false endorsement claim. "A false endorsement claim based on the unauthorized use of a celebrity's identity . . . alleges the misuse of a trademark, . . . such as visual likeness, vocal imitation, or other uniquely distinguishing characteristic, which is likely to confuse consumers as to the plaintiff's sponsorship or approval of the product." Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1110 (9th Cir. 1992).
Thus, Mr. Pesina must demonstrate that he was a "celebrity" when the defendants used his persona, name, and likeness; otherwise, his identity does not constitute an economic interest protectable under the Lanham Act. See id. He must also demonstrate consumer confusion. Mr. Pesina's own expert conceded that the plaintiff's identity as a martial artist had no celebrity status or public recognition, and therefore lacked commercial value, prior to the plaintiff's association with Mortal Kombat and Mortal Kombat II. The defendants present convincing evidence, to which Mr. Pesina has not responded, that consumer confusion is highly unlikely because the public does not even recognize Mr. Pesina as a model for the home Mortal Kombat and Mortal Kombat II characters. See supra. Since no genuine issue of material fact exists with respect to the violation of the Lanham Act, summary judgment is appropriate on Count II. Cf. DeClemente, 860 F. Supp. at 45-46 (plaintiff not entitled to Lanham Act protection, where "no evidence has been adduced that would allow a reasonable juror to find that in the mind of the public, even the consumer public in karate, when a consumer is presented with the term 'The Karate Kid,' he or she would know the source to be the plaintiff").
Mr. Pesina's factual allegations under the Consumer Fraud Act and the Deceptive Trade Practices Act, Counts III and IV, are identical to those under the Lanham Act. The legal inquiry is the same under the Illinois and the Lanham Acts. See Rock-a-Bye Baby, Inc. v. Dex Products, Inc., 867 F. Supp. 703, 713-14 (N.D. Ill. 1994); Spex, Inc. v. The Joy of Spex, Inc., 847 F. Supp. 567, 579 (N.D. Ill. 1994). Accordingly, I grant summary judgment on Counts III and IV.
I grant summary judgment on Count V, which alleges that the Midway defendants breached their duties of good faith and fair dealing, because "the duty of good faith and fair dealing which the law implies [in every contract] does not create an independent cause of action." Powers v. Delnor Hosp., 135 Ill. App. 3d 317, 481 N.E.2d 968, 972, 90 Ill. Dec. 168 (1985).
Finally, in Count VI, Mr. Pesina's quantum meruit claim, the plaintiff essentially complains that when he signed the contracts to model for characters of the coin-operated arcade version of Mortal Kombat and Mortal Kombat II, he agreed to inadequate compensation, since the characters went on to appear in the home version of the games. Under Illinois law, however, quantum meruit relief is not available "when a contract exists between the parties concerning the identical subject matter upon which the quasi-contractual claim rests." P-K Tool & Mfg. Co. v. General Elec. Co., 612 F. Supp. 276, 278 (N.D. Ill. 1985). Therefore, I grant summary judgment on Count VI.
For the reasons stated above, the defendants' motion for summary judgment is granted.
Elaine E. Bucklo
United States District Judge
Dated: December 9, 1996