Know the Right of Publicity, or You May Exploit a Celebrity
How much do you know about the right of publicity?
Brands like Duane Reade and Great Lakes Brewing Company will tell you: it can be difficult to determine what exactly constitutes commercial use and non-commercial use of a celebrity’s name, likeness, or identity. At what point, though, does it become downright irresponsible and exploitative to work without a full understanding of a person’s (celebrity or otherwise) rights?
Here’s what you need to know to avoid the dangers of stepping out of legal boundaries (and to stop exploiting celebrities) when it comes to using celebrity photos for advertising and social media.
What Is the Right of Publicity?
The right of publicity has multiple definitions, but it goes a little something like this: it is the state-by-state law that dictates how a person’s name and likeness can be used for commercial purposes without their consent.
Despite being very public-facing figures, celebrities do have the right of publicity, allowing them to control the commercial use of their respective names, images or likenesses, or the other unequivocal aspects of their own identities. It allows them to keep their image and likeness from being commercially exploited without permission or contractual compensation.
What Does It Take to Violate The Right of Publicity?
The right of publicity can be violated when a company uses a celebrity’s name or likeness for advertising purposes without their explicit permission. It is for this reason that all celebrities used in advertisements or endorsements sign consent or release agreements.
The right of publicity is not violated, however, if the celebrity’s name or likeness is used in a non-commercial way. That type of use is protected by the First Amendment. Don’t get too excited, though; what is defined as “non-commercial” can be a bit of a gray area (especially in the age of social media).
3 Times When Brands Exploited Celebrity Publicity Rights (and Celebrities Struck Back)
Let’s paint a clear picture of celebrity rights of publicity violations. Here are three famous cases:
1. Michael Jordan vs. Jewel-Osco and Dominick’s
The situation: Supermarket chain Jewel-Osco used Michael Jordan’s name in a 2009 Sports Illustrated ad that congratulated the six-time NBA champion on his induction into the Basketball Hall of Fame.
Next to this was an ad for Dominick’s, a fellow grocery store chain. This ad was seen as particularly egregious because it included a coupon, which suggested the ad’s purpose was (at the very least) partly commercial.
Jordan didn’t see these ads as innocent celebratory gestures; he saw them as misappropriations of his identity for commercial benefit. He sued, arguing that these were violations of his right of publicity.
The outcome: Following legal battles, a jury awarded Jordan $8.9 million from the now-defunct Dominick’s in August 2015. Jordan then reached an undisclosed deal with Jewel-Osco in November 2015. It was said that Jordan donated the net sum of the settlement to charity.
Outside of the courthouse, Jordan said, “It is my name, and I’ve worked hard for it for 30-something years, and I’m not just going to let someone take it.”
2. Katherine Heigl vs. Duane Reade
The situation: In April 2014, actress Katherine Heigl filed a $6 million lawsuit against pharmacy chain, Duane Reade, for sharing a photograph of her taken outside of a Duane Reade location in New York by paparazzi on their Twitter and Facebook channels. The tweet read, “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.”
Duane Reade didn’t have the actress’s approval to use her image. She accused the pharmacy chain of misappropriating her image to promote its stores and implying that she endorsed their stores.
The outcome: In August 2014, Katherine Heigl and Duane Reade came to an agreement, the terms of which were confidential.
Her lawyer provided some detail: “Katherine Heigl and Duane Reade have worked out a mutually beneficial agreement,” says Peter Haviland at Ballard Spahr. “Ms. Heigl has voluntarily dismissed her lawsuit, and Duane Reade has made a contribution to benefit the Jason Debus Heigl Foundation [a charity Heigl created in the memory of her brother who died in a car crash as a teen].”
3. LeBron James vs. Great Lakes Brewing Company
The situation: In May this year during Game 1 against the Toronto Raptors, Cavaliers star LeBron James playfully took a beer out of the hands of a courtside vendor.
Pictures and video of James holding the Great Lakes Brewing Co. beer quickly circulated, and the beer company shared this photo of the moment on Twitter to take advantage of its product’s use by a sports celebrity. James wasn’t pleased.
The outcome: James’s reps threatened legal action unless the image was taken down by the beer company for illegal use of Lebron’s likeness.
James told Cleveland.com, “This is about the last thing I’m trying to worry about right now, my agent and my legal team will take care of it, but yeah I know [Great Lakes] is trying to benefit off of me.”
After Great Lakes had removed the tweets from their page, ESPN reported that the tensions between the two sides had died down.
Pause Before You Exploit a Celebrity’s Image
Incidents like the ones above demonstrate why brands need to be extremely careful when using celebrities’ images without their permission in ways that could be interpreted to promote corporate goals. When it comes to social media, in particular, the difference between what is legal and fair use and what is not can be murky.
So a kind word of warning to brands: don’t just take photos of celebrities and do with them as you please. By doing so, chances are that you are inherently using the name and likeness of the celebrity to endorse your brand, even if you are just reposting a paparazzi photo of a celebrity seen naturally wearing / using your brand and its products.
