In today’s celebrity culture, the famous (even those wanting to be famous) seem to be everywhere. They show up in the news, they appear in Us, People and on Entertainment Tonight, and they are a topic of discussion online. Indeed, according to a Rolling Stone article last month(from when the article was originally published in May), celebrities (A-listers and below) routinely coordinate appearances with the paparazzi to ensure exposure. These people lead very public lives.
But don’t for a second make the mistake of thinking that public lives are public domain, or that you have a right to use celebrity names or likeness for your own commercial purposes. Taken together, two recent cases offer a cautionary reminder of the potential cost of using someone’s name or likeness in advertising without express written permission.
When Michael Jordan was inducted into the Basketball Hall of Fame in 2009, Sports Illustrated devoted a commemorative edition to his career. Jewel-Osco, a Chicagoland-based grocery store chain, jumped at the chance to advertise in the issue, running this ad on the inside back cover.
The ad featured the Jewel-Osco logo, a pair of basketball shoes bearing Jordan’s number 23, and “salute[d] “#23 on his many accomplishments as we honor a fellow Chicagoan who was ‘just around the corner’ for so many years.” ”Good Things Are Just around the Corner” had long been Jewel-Osco’s tagline.
Unimpressed with the honor, Jordan filed a $5 million lawsuit for violation of, among other things, his Illinois state law right of publicity. Earlier this year, a federal appeals court reversed a lower court ruling that the ad was constitutionally-protected speech. Pointing out that the ad prominently featured the Jewel-Osco logo and marketing slogan, “creatively and conspicuously linked to Jordan in the text of the ad’s congratulatory message,” the court held that Jewel-Osco had engaged in “a form of image advertising aimed at promoting the Jewel-Osco brand,” something that does not merit blanket First Amendment protection. Accordingly, it sent the case back to the district court to test the merits of Jordan’s multi-million dollar claims.
Using His Airness in something that’s so clearly advertising might strike us all as risky. But what if a celebrity actually uses your store? They are in public, right? So can you tweet a picture of them walking out of your store?
Maybe not. In March, drug store chain Duane Reade uploaded pictures of actress Katherine Heigl to its Twitter and Facebook accounts. The pictures quite accurately showed Heigl carrying Duane Reade shopping bags. “Love a quick #DuaneReade run?,” said the post, “Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.” Heigl sued for $6 million, claiming that the social media postings were commercial advertising using her name and likeness without her permission.
Cases like these have been around for years. Several years ago, American Apparel reportedly paid Woody Allen $5 million after improperly using an image of him from Annie Hall in billboard ads.
And these cases don’t always involve the actual name or picture of a celebrity. Allen had sued an apparel company in the 1980s for using a look-a-like in its advertising, and a few years later Vanna White sued Samsung for using a robotic look-a-like in ads. But advertisers seemingly (and inexplicably) keep running the risk, so the cases keep coming.
While the cases are more likely to come to light because they involve celebrities (they arguably have more to protect, and easier access to high-powered lawyers), the law isn’t so limited. In Virginia, as in many other states, you cannot use any person’s name or likeness “for advertising purposes or for the purposes of trade” with first having secured written permission. The statute protects the famous, the infamous, the known and the unknown, the living and even the dead (at least for twenty years after their death). The penalty for violating Virginia’s statute may include injunctive relief, compensatory damages and, in cases of knowing violations, punitive damages.
In short, advertiser beware.
