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MTV Sued by 'Smelly Old Man'

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By Laura Strachan, Esq. on October 22, 2010 7:07 AM

Something smells funny at MTV. Perhaps that is because MTV is being sued by Smelly Old Man. According to the Daily Telegraph, an episode aired in August in which a man now only known as smelly old man (real name: Martin Ellyn), became an unwanted celebrity. So now he is suing for it.

The encounter went something like this ... while filming an episode of MTV's "Rob Dyrdek's Fantasy Factory" Rob and his friend were trying to locate an unpleasant smell. When they saw an elderly man walking down the street, they attributed the unpleasant odor to him -- simultaneously creating the nickname Smelly Old Man and the current lawsuit. Shortly after the episode was aired, Ellyn's nephew sent him the YouTube clip of the episode.

Smelly Old Man claims that the jokes did not stop after production crews closed up show, and he is now given air fresheners by friends and relatives. In the complaint, Ellyn argues that MTV used his image without his permission and now seeks $25,000 in damages stemming from the continued humiliation he has endured since the episode aired.

The claim here is that Smelly Old Man's publicity rights were violated in airing the show. Even though this is a claim usually employed by movie stars when their image is used for an unapproved promotion or in an unflattering likeness, everyone has a right to control their image. When an individual's image is used without his or her permission (here, it was the video depiction) there are three publicity avenues of recovery: invasion of privacy, violation of right of publicity, and defamation.

Here, Martin Ellyn is claiming that not only was there an unauthorized use of his image, it also portrayed him in a false (and odorous) light. The surprising part of this suit is that MTV is the reality television capital of broadcasting. Many of the network's shows are reality-based, and often use outside characters to enhance the show. Why the network did not have Ellyn sign some type of a release form is surprising, and a legal misstep on their part. MTV has not commented on the suit.

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