Social media websites are quickly emerging as the new battleground for right of publicity disputes, with the ultimate question being an old one – what are the parameters of First Amendment protections for corporate, commercial speech? With many brand owners utilizing social media as an indirect form of marketing, the question is to what level of First Amendment protection is a brand’s social media platform entitled?

With the vast majority of these disputes settling, courts have had little opportunity to weigh in on this emerging issue. In one such recent case, the estate of Humphrey Bogart objected to Burberry’s use of Humphrey Bogart’s image in a timeline posted on various Burberry social media sites, including Facebook, Twitter and Instagram. The historical timeline depicted famous individuals and celebrities wearing Burberry merchandise. The Bogart estate, which controls the deceased actor’s right of publicity, sued Burberry in California, a state that permits the right of publicity to be enforced after death. In its Complaint, the Bogart estate claimed that Burberry’s use of Bogart’s image in the historical timeline wrongfully used his persona in a commercial manner without consent in order to enhance Burberry’s sales. Burberry separately sought a declaratory judgment against the Bogart estate in New York, arguing that the historical timeline in its social media pages was “was not directly connected with the sale of any merchandise,” but rather a “historical positioning of the image within an educational project along with numerous other photographs of people wearing Burberry apparel over the last century.” In early August 2012, the parties settled their dispute without revealing any details of the settlement.

The question of what defines ‘commercial speech’ in the social media context remains largely unresolved. More traditional forms of direct advertising are entitled to a lower level of First Amendment protection, whereas speech that is editorial or educational in nature receives a much higher level of First Amendment protection. It remains unresolved whether a brand owner’s posting of arguably editorial or educational material automatically transforms such otherwise protected speech into commercial advertising. In the absence of any clear legal guidance on this topic, brands owners should coordinate a risk analysis with legal counsel and conduct a cost / benefit analysis when proposing any use of a celebrity’s image in their communications, whether in traditional advertising (television) or newer media platforms (social media pages).