With 255 million monthly active Twitter users and more than 1 billion active Facebook users, social media platforms are powerful tools for companies to build relationships with their consumers and share information about their products. Although social media offers companies a wide variety of opportunities to engage consumers, such as through conducting online promotions or posting enticing content, companies must also be careful to avoid the legal risks that may be associated with these opportunities. We previously reported on tips to avoid liability in online promotions and tips to avoid liability in tweeting links. In this post we will discuss the risks associated with tweeting or posting about celebrities without permission. Our take-home advice is DON’T DO IT without permission, or it may cost you. Millions.
Have you seen a celebrity wearing your company’s brand or using your company’s products, and been tempted to share the news with your consumers? As suggested above, doing so is fraught with legal risks, and in most cases it is best to veto the idea, unless you are able to obtain authorization from the celebrity in question.
The most significant issue involved with tweeting or posting about a celebrity in a commercial context is the risk of violating the celebrity’s right of publicity. The right of publicity is generally understood to be the right of a person to control the commercial exploitation of his or her identity, and prevent commercial appropriation of his or her identity by others without permission. Although this right under U.S. law is recognized at the state level and thus can vary, a right of publicity violation generally consists of unauthorized use of a protected aspect of identity (i.e. name, image, likeness) for commercial purposes, such as use on commercial products and in commercial advertising.
There are several exemptions to right of publicity violations under U.S. law, including use in news, public affairs, sports broadcasts and political campaigns. Some courts have also created an exemption for incidental uses that have little or no commercial impact, with the relevant factors being: (1) relative length of use compared to the length of the work in which the use is made; (2) significance of the use to the work; and (3) relationship between the use and the content of the work. The First Amendment may also provide an additional defense, particularly if the use is in the context of speech providing news and public interest information. However, the First Amendment will not protect against a right of publicity claim when the use is for purely commercial reasons.
Although these exemptions exist, a tweet or post by a company, on the company’s commercial social media page, would likely be viewed as having a commercial purpose. After all, sharing the celebrity spotting with your consumers would likely be viewed as sending the commercial message, “Celebrity X wore/used our products, you should also!”
Besides a right of publicity violation, such activity could give rise to other claims. For example, celebrities could assert a false endorsement claim under Section 43(a) of the Lanham Act. In this claim, the celebrity would be asserting that the unauthorized commercial use of his or her name or likeness suggests that he or she endorses the company’s products. Additionally, if a company not only tweeted the statement that a celebrity used its product, but also tweeted a picture of the use, this could expose the company to liability for copyright infringement unless the company owns or has a license to the copyright to the photograph.
It should be noted that rights associated with a celebrity’s image vary by country. For example, in the UK, using a celebrity’s image without permission could give rise to claims for passing off, invasion of privacy, or even a violation of the Data Protection Act 1998, depending on the circumstances. Of course, tweeting or posting on social media can have a global reach, and many companies have a presence in various jurisdictions. Thus, even if a tweet or post may not seem as risky in some countries as it would others, companies would be wise to consider the implications under the stricter law.
Now, it is possible that the celebrity in question would not take offense to the social media post and would not take any action. For example, Arby’s fast food chain tweeted “Hey @Pharrell, can we have our hat back? #GRAMMYs,” after observing celebrity Pharrel Williams’ unique attire at this year’s Grammys award show. As far as we know, the celebrity has not taken any action against Arby’s, and in fact Arby’s subsequently purchased the hat from Pharrell on eBay for a whopping $44,100, to go to a charity.
However, as we all know, celebrities command large dollars for endorsements, including for sending sponsored tweets, and thus many will control their protected publicity aspects tightly in order to preserve their endorsement value. As a recent example, celebrity Katherine Heigl recently filed a $6 million lawsuit against a drug store chain for tweeting a photograph of her leaving its store, with the text “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.” The company also posted the photograph on its Facebook page. Ms. Heigl’s complaint alleged a false advertising claim under the Lanham Act, violation of her rights of privacy and publicity, and unfair competition. Duane Reade has not yet responded to the complaint.
As another example, food store chain Jewel Food Stores ran an advertisement with congratulatory text about basketball superstar Michael Jordon’s induction in the Basketball Hall of Fame. In response, Mr. Jordon filed suit against Jewel for right of publicity violation, false endorsement under the Lanham Act, and unfair competition, seeking $5 million in damages. Jewel argued that its notice was non-commercial speech and should be protected by the First Amendment. Although the district court agreed with Jewel, the Court of Appeals held that although the advertisement had a celebratory theme, there was an unmistakable commercial function also – enhancing the store’s brand in the minds of consumers.
The bottom line is, although a tweet or social media post may arguably have a “newsy” connotation, it is likely that a court would view such a post on a company’s commercial social media page as having an undeniable commercial purpose, and thus none of the exemptions or defenses discussed above would apply. The best approach when wanting to tweet or post about a celebrity sighting with your brand is to get the celebrity’s permission before doing so. Although the celebrity may command a payment in exchange for the endorsement, it would likely be cheaper than the millions your company may face in damages and attorneys’ fees if taking the gamble.