Burberry Group, PLC, licensed a photograph to use in its social media, yet got sued anyway. The picture showed Humphrey Bogart wearing a Burberry trench coat in the movie “Casablanca.” The copyright license was duly acquired from stock photo provider Corbis. Burberry's use was limited to a post on a social media timeline on its corporate Facebook page, illustrating the history of Burberry’s iconic brand. The use resulted in two law suits. Bogart, LLC, v. Burberry Group, PLC, et al., No. 12-4491 (C.D. Cal. 2012); Burberry Limited, PLC, et al., v. Bogart, LLC, No. 12-3491 (S.D.N.Y. 2012).
The problem? While free speech largely protects editorial depictions of celebrities in news and art, commercial speakers such as Burberry must clear additional hurdles when associating people, especially celebrities, with their products, even if such associations happen outside the realm of traditional advertising. These associations risk being deemed implied endorsements, leading to potential liability under Section 43(a) of the Lanham Act. In addition, individuals, and in some states their heirs, have a so-called publicity right that requires permission before their name, likeness, or persona can be associated with a product or service. Even a disclaimer that the person has not endorsed the product or service will not protect an advertiser from a right of publicity claim, which in some states provides for statutory damages. Of course, for celebrities who get millions of dollars for associating with brands, the damages can be large. Celebrities and their representatives now frequently scour the Internet looking for companies that use their images on web sites, social media pages, and otherwise, without permission. While a gossip or fashion blog may have a protected free speech right to show a picture of a celebrity on the red carpet without consent, an apparel company does not have the same right to post the same picture, even if the celebrity was in public wearing its clothing.
In this case, Burberry did not secure permission from Humphrey Bogart’s heirs before using his image. The parties have reached an amicable settlement, and on July 31, 2012, the suits were dismissed with prejudice on undisclosed terms. Stipulation of Dismissal of Entire Action with Prejudice, Bogart, LLC, v. Burberry Group PLC, et al., No. 12-4491 (C.D. Cal. 2012). But the litigation still stands as a reminder of the pitfalls that can befall companies using images in social media, including when they repost, repin, or retweet images that third party users have initially posted.
For more information about the legal risks inherent to social media, please see:
Friel, Alan. Bask in the Light of Stars Without Paying Them, and You Might Get Burned, Bloomberg Law Reports - Intellectual Property, August 8, 2011.
Friel, Alan, and Jesse M. Brody. Right-of-Publicity Claims and Advertiser Sponsored User-Generated Content Campaigns Limitations of CDA Immunity and the Risk of Claims, e-Commerce Law & Strategy, January 2012.