“The Best Legal Blog I’ve Ever Read!” – [Insert Big-Time Celebrity’s Name Here]April 27, 2011 – Article
Celebrities have a lot of influence over modern society. They influence how we dress (hey celebrities, can someone put an end to the unflattering skinny jeans trend, please?), how we talk (or had you not noticed your frattiest coworkers repeating “that’s hot” and “winning” ad nauseum), how we dance (who started this fist-pumping thing, anyway?), the way we vote (or whether we vote at all), and what we buy. Not surprisingly, companies take advantage of this bizarre phenomenon by paying celebrities to promote their products. For example, football great and ladies’ man Joe Namath showed off his shapely gams to endorse Beautymist pantyhose in a silly commercial, supermodel Heidi Klum strangely decided to lend her name and face to a fat-free fruit candy, and Oprah’s multi-sector Midas touch is so potent she has an “Effect” named after her.
Occasionally, a company might incorporate a celebrity’s quote into an advertisement to hype a particular product or service. For instance, Larry King now touts the large-scale equestrian production, Cavalia, as “[t]he greatest show I’ve ever seen!” on a big billboard in…gasp…the Valley! Also, the late suit designer and proprietor of “the most expensive store in the world,” Bijan, teamed up with the uber-expensive Rolls-Royce in a partnership that Bush the Elder (that’s right, George H.W. Bush himself) describes as “[a] class act designer partnered with a class act car.” It is probably safe to assume that Cavalia and Bijan/Rolls-Royce obtained permission to use Larry King’s and George Bush’s names and quotes on these billboards (and if not, I know a good lawyer). But, because we live in a world where people do not always ask for permission (or otherwise abide by the law), these billboards made me think about the limitations on using a celebrity’s quote in an advertisement.
Reprinting This Quote Is A-OK, Unless It Isn’t
As we’ve discussed here before, the right of publicity prevents the unauthorized commercial use of an individual’s name and/or likeness, as well as certain other indicia of identity. As a practical matter, we typically see this right come into play with celebrities, because it isn’t clear how much impact a glowing endorsement from someone like me would actually have on consumers’ buying behavior (on the other hand, I think you’ll find my endorsement fees are very affordable). Because a celebrity’s identity can be valuable in the promotion of products, the law protects that celebrity’s exclusive right to control and profit from the commercial use of his or her identity.
Context matters, because the right of publicity, however, does not prohibit all unauthorized uses of a celebrity’s identity — it only prohibits the unauthorized commercial use of a celebrity’s identity. Therefore, in order to prevail on a right of publicity claim, the celebrity must show that his or her name or likeness was used for a commercial purpose without his or her consent — and the incorporation of a celebrity name and quote into an advertisement, even if factually accurate, would almost certainly violate the celebrity’s right of publicity, unless the celebrity expressly authorized the use. For example, Cameron Diaz has told reporters in the past, “I love my Prius…The Prius is all I drive.” (In case you were wondering, I love my Prius too! [Ed. Note: Me too!]) It’s fine for Time to reprint this quote in reporting a news story about hybrid cars. It would be fine for People to reprint this quote in “reporting” a “news story” about celebrity trends. But if Toyota then used Cameron’s name and quote in an advertisement promoting the eco-friendly hybrid without her permission, Toyota would be violating Cameron’s exclusive right to control and profit from the commercial use of her name.
The Federal Solution
Because the right of publicity is a creature of state law, and varies from state to state, would-be litigants can seek bonus comfort in the warm, nationally-uniform(-ish) embrace of the Lanham Act (a.k.a federal trademark law). As I’ve discussed in this space before, the Lanham Act (among other things) creates a cause of action for “false endorsement” — that is, it prevents a company from misleading consumers into believing that a celebrity endorsed a particular product. And in close-call situations, such as those involving lookalikes, courts have sometimes relied on the Lanham Act to provide “essentially the same relief” the celebrity plaintiff could get with a right of publicity claim. How legally efficient.
But the application of the Lanham Act where a company has reprinted a factually accurate quote for advertising purposes is unclear. (To be clear, a quote taken out of context to create the appearance of endorsement/praise is probably an easier call in the celebrity’s favor.) On the one hand, if Cameron Diaz has really gushed about her love of hybrid driving, or if Ex-President Bush-the-Elder really thinks “class act” is the right way to describe Bijan’s garish yellow Rolls, it would be hard for them to argue that the endorsement is “false.” On the other hand, a celebrity might be less concerned about praising a product they actually love than about being perceived by fans as a “sellout” for offering a public commercial endorsement of any product. Consumers who are accustomed to the corporate use of celebrity endorsements may wrongly assume that a celebrity whose quote is used in advertising has volunteered themselves for that commercial context, and that could be the “false endorsement” the celebrity is looking to stop. As far as I know, no court has ever decided the issue.
No Names Required
But, what if an advertisement uses a celebrity’s quote without mentioning the celebrity’s name? The right of publicity has been greatly expanded to apply to almost anything that evokes a celebrity’s identity, including lookalikes, soundalikes, nicknames, a robot dressed like a celebrity, and even celebrity catchphrases. This means that a celebrity’s identity may be commercially exploited even if his or her name or actual image is not used.
In this type of scenario, a court would analyze the extent to which the celebrity is readily identifiable from the quote used in the advertisement. For instance, suppose “Float like a butterfly, sting like a bee!” was plastered on a billboard to promote the opening of a new boxing gym without Muhammad Ali’s consent. Putting aside the other legal issues that would likely arise from this unauthorized use, Ali would need to show that this quote sufficiently evoked his identity in the public’s mind in order to prevail on a right of publicity claim. (My guess is that most people would immediately associate this legendary quote with Muhammad Ali.) As such, a court could find that the unauthorized use of Ali’s famous quote in an advertisement for the boxing gym violates Ali’s right of publicity.
Just Let the “News” Do Your Dirty Work
Of course, major advertisers have lawyers, lawyers are risk-averse, and in practice, a reputable corporation is unlikely to plaster a celebrity quote in its advertising without clearing it with the celebrity first, lest that endorsement very suddenly — and very publicly — go sour.
Because of the “commercial” requirement/“newsworthiness” loophole to the right of publicity discussed above, though, companies who are the subject of choice celebrity quotes can often put away their checkbooks, their lawyers, and their ad agencies, and simply bask in the free publicity that the most memorable celebrity quotes can generate in the celebrity-obsessed news media. For example, in a classic dumb blonde moment on her short-lived reality TV show, Jessica Simpson asked of her lunch, “Is this chicken what I have, or is this fish? I know it’s tuna but it says Chicken by the Sea.” (FYI: It’s tuna, people!) Chicken of the Sea had little incentive to enlist Jessica as an official pitchwoman because the company received plenty of free publicity from her on-air tuna blunder and the barrage of news articles that followed.
Of course, vastly underappreciated was then-husband Nick Lachey, whose withering glare in response to Simpson’s question was more evocative than ten news stories and twenty billboards ever could have been. If the Long-Suffering Husbands of America ever need a celebrity spokesman — or maybe just an official facial expression — I think they have their man.