Henderson v. Radio Corporation Pty. Ltd.

The Hendersons (plaintiffs) were world-famous ballroom dancers from England who moved to Australia. The Hendersons gave ballroom-dancing performances, lectures, and demonstrations. Radio Corporation Pty. Ltd. (Radio Corp.) (defendant) published and sold a ballroom-dancing gramophone record called Strictly for Dancing. The cover of the record bore a photo of the Hendersons, who did not authorize the use of their image. The Hendersons sued Radio Corp. in a passing-off action in the High Court of New South Wales, alleging that the photo on the cover would mislead ballroom-dancing instructors, who were the target audience, into thinking that the Hendersons recommended the record. At trial, uncontradicted expert testimony established that the cover would mislead ballroom-dancing instructors. The court granted an injunction to the Hendersons that prohibited Radio Corp. from selling, distributing, or supplying copies of the record bearing the cover containing the Hendersons’ photo. Radio Corp. appealed, arguing that establishing the tort of passing off required the Hendersons to prove that they were involved in a common field of activity with Radio Corp., and that because Radio Corp. was a record publisher and distributor and the Hendersons were ballroom dancers and instructors, the two parties were not involved in a common field of activity.