CELEBRITY IMAGES IN ADVERTISING
The Internet and social media have created a marketplace in which fashion designers, retailers and distributors interact with consumers like never before. Pinterest, Twitter, Facebook and blogs allow companies to communicate directly with consumers and create a sense of familiarity in what once was once a more distant relationship. In the friendly atmosphere created by social media, companies can overlook that they are commercial entities with a primary agenda to market and sell, not media or content providers. For purposes of liability arising from advertising, the commercial/media distinction is illustrated by the increasingly common practice of using celebrity images and names in online content. In the United States, fashion retailers are subject to more restrictive legal rules when generating media content than are "pure" media providers taking similar actions online.
It matters who's talking
Laws governing the consumer relationship do not keep pace with constantly changing technology. As a result, the line that separates commercial speech from First Amendment-guaranteed free speech becomes blurred in the Internet age, along with a company's legal obligations and potential for liability.
Consider the following hypothetical example: Tina Teenager tweets a picture of Sally Celebrity wearing pink stilettos made by Joe's Shoes tagged #GreatShoes #JoesShoes, and a link to www.JoesShoes.com. Tina's use is not commercial (assuming she has no undisclosed material connection to Joe's Shoes1). But if Joe's Shoes tweets the exact same thing on its company Twitter account, this may be considered commercial use, and Sally Celebrity may have a cause of action against Joe's Shoes for infringement of her right of publicity.
Misappropriation, false endorsement, right of publicity
Any celebrity who appears on a company's blog, website, Facebook page or Twitterfeed without authorization may have a claim against that company in the US for misappropriation, infringement of her right of publicity and/or false endorsement.
Actions for misappropriation of a name or personality and the right to publicity are recognized in a majority of US jurisdictions, either by statute, common law or both. For a cause of action to accrue, states recognizing these rights require a defendant to use a plaintiff's likeness for "commercial purpose or advantage." Advertisements generally fall within this category. A Facebook page is not necessarily an advertisement, but a company may have difficulty arguing that a company-sponsored Facebook page has no commercial or advertising purpose. Some states recognize a newsworthiness exception to liability for such claims (including for media commentary on fashion and celebrity style), but if a person's likeness is published for a primarily commercial purpose, this exception will not be available, even if there is some public interest in the underlying message. The distinction is fine, as the media engages in reporting and commentary for profit motive. But a company whose primary business is selling fashionable goods will not enjoy the same leeway.
False endorsement is an action based in US trademark law, the crux of which is that use of a celebrity's name or personality creates a likelihood of confusion among consumers as to the celebrity's sponsorship of, or affiliation with, the product.
Lawyers dream of an ideal world where, for every tweet, Facebook post and Pinterest pin, there is a validly executed endorsement agreement, complete with consent, waiver of privacy rights, assignment of intellectual property rights and an indemnification. However, in the real world:
- Endorsement agreements take time to negotiate (and in fashion, one day you are in and the next you are out).
- Even though the use is fleeting or incidental, the cost to procure a consent may not be.
But there is risk in ignoring the real world:
- We took it down immediatelyh is not a valid defense; once use occurs, the cause of action accrues.
- Every individual has a cause of action for misappropriation of name or likeness, whether that individual is a celebrity or not.
- Celebrities are suing with increasing frequency as a result of the ease with which their images may be copied and disseminated over the Internet. Even if a company has rights to use a photograph, right of publicity does not automatically transfer with copyright. Here are some recent examples:
- In 2013, actor Reese Witherspoon alleged that her likeness was exploited in a product advertisement on a website.
- In 2013, actors Bradley Cooper and Liam Neeson alleged that their images were used in advertisements without permission.
- In 2012, actor Sandra Bullock claimed that her name and likeness were used in advertisements relating to watch products without her permission.
- In 2009, actor Woody Allen sought US$10 million in damages for infringement of his right of publicity and false endorsement when the defendant used a still from the motion picture Annie Hall on a billboard.
Best practices for staying out of the hot zone
Today, marketing through tweets, Facebook pages and blogs matters. But in the US, fashion retailers will likely not receive constitutional free speech immunity from the claims detailed above. Accordingly, companies who wish to reduce their risk of liability should:
- Perform an audit of any current uses of celebrity images in all marketing media to ensure that necessary consents and releases have been obtained
- Secure consents and releases if a company wishes to use such images
If celebrity images are important to marketing strategy, consider contracting with a marketing company to secure images and consents on the company's behalf. The contract with the marketing company should include robust warranty and indemnification provisions to ensure that all necessary rights to such images have been obtained and that the marketing company will fully indemnify the company in the event of third-party claims.
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