Hollywood superstars Robert De Niro and Al Pacino recently settled a right of publicity and false advertising suit against watchmaker Tutima USA Inc., and movie distributor Overture Films LLC. The suit, filed in March 2009, accused Tutima and Overture of using the actors’ likenesses without their permission in advertising for Tutima watches.
The advertisement at issue linked the Tutima watch with the critically-panned movie “Righteous Kill,” which starred De Niro and Pacino as aging New York detectives on the trail of a serial killer. De Niro and Pacino agreed to act in the movie. Separately, Tutima paid co-defendant Overture a product placement fee reportedly in the amount of $50,000 for the Pacino character to wear a Tutima watch onscreen in the movie, which he did. Tutima then embarked on the offending advertising campaign, which included advertisements in major publications using the movie’s poster – featuring the actors’ names and faces – with a Tutima watch inserted in the foreground. De Niro and Pacino argued, among other things, that by so prominently featuring their names and faces in the Tutima watch ad campaign – a separate endeavor from promoting the movie – the actors’ right of publicity was violated.
The case is interesting because while the actors were, of course, under contract to star in the movie, their contracts did not necessarily grant to Overture or Tutima a license to use the actors’ names or images in an advertising campaign for the watches. According to the complaint, De Niro requires “very specific and compelling circumstances” to grant his commercial endorsement, while Pacino “has never commercially endorsed any product or service in the United States.” It was also not clear that by simply including the movie poster in an ad campaign for the watches, consumers would think that the actors endorsed the products (although that arguably was a prime motivation for Tutima to include the movie poster in the ads). Because the Overture and Tutima partnership lacked the requisite express permissions to link the actors with a watch product outside the context of the movie, the actors sued Tutima for false advertising, they sued Overture for breach of contract, and they sued both defendants under New York State’s right of publicity and right of privacy laws. Terms of the settlement were not disclosed.