It's the time of year when we Americans honor the Stars and Stripes, but people all over the world get starry-eyed over celebrities. Recognizing this, advertisers like to use celebrity images in advertising. Recently, we wrote about Katherine Heigl's $6 million lawsuit against Duane Reade for a tweet using her photo without her permission, and the blog got so many hits that we thought that we would dive deeper and look at a couple of the more interesting new developments in the U.S. and other countries on the issue of who has the right to use celebrity images or likenesses in advertising.
It should come as no surprise that a celebrity wants to control the right of third parties to use his or her likeness in advertising or commerce. A celebrity's image is her brand, and that brand (sometimes regardless of any demonstrable skill) is what keeps her marketable to the public. Further, in the U.S., many states recognize personality rights, including the right of publicity—in other words, the right to keep one's name and image from being commercially exploited without permission and/or compensation. With the growing popularity of social media, the ability of third parties to appropriate celebrity images and other intellectual property has expanded, but celebrities have been fighting back, a la Katie Heigl, in both the U.S. and in other countries and in sometimes unconventional ways.
For example, in France, Scarlett Johansson is suing a novelist for €50,000 alleging that his fictional work makes fraudulent characterizations about her life. The book, entitled "La Premiere Chose qu'On Regarde" (The First Thing We Look At), is about a French model that looks like Johansson. The character poses as the actress, which makes her the object of men's affection and the disdain of other women, who view her as a sexual object. Johansson claims that her likeness was used to publicize the book, which has reportedly already sold over 100,000 copies since it was published in March 2013. In response to the lawsuit, the author said he used Johansson as the "archetype of beauty today," and voiced his concern that "[i]f an author can no longer mention the things that surround us, a brand of beer, a monument, an actor ... it's going to be complicated to produce fiction." Johansson is also seeking an injunction to stop the book from being translated or adapted for cinema. A decision from the French court is expected in July.
Recent disputes over copyright infringement in advertising extend beyond just celebrity names to pictures of celebrity tattoos. In 2012, Stephen Allen, a tattoo artist, sued video game maker Electronic Arts and Miami Dolphins Running Back Ricky Williams over a tattoo that was depicted on Williams' bicep on the cover of Electronic Arts' "NFL Street" video game. Allen argued that the reproduction of the tattoo violated his copyright. The case was later dismissed at the request of the plaintiff, but it raises interesting questions regarding who owns the right to tattoos. Indeed, another lawsuit was previously filed against the studio before the release of the popular film "The Hangover II" in which tattoo artist Victor Whitmill claimed that he was owed money for re-creating Mike Tyson's famous tribal tattoo on the face of one of the comedy's lead characters. That lawsuit was eventually settled for an undisclosed sum.
Advertisers should seek legal advice before using celebrity images in advertising. Even if you are not using the "likeness" or image of a celebrity, use of a name or identifiable characteristic (like a tattoo) in advertising could be risky unless the celebrity gives permission. Moreover, it may be necessary to procure releases from third parties like tattoo artists, or (perhaps with the permission of the celebrity), use a program to airbrush tattoos out of photos. One thing is clear—don't let the stars in your eyes blind you to the potential risks in celebrity-based advertising campaigns.
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