by Marc Fuller
Say your favorite pro athlete was just named league MVP. Reading the sports-page column celebrating this achievement, you are inspired to offer your own congratulations. So you take to Twitter.
Can the athlete take you to court? Whether you end up in court—and, more importantly, whether you can get out of court unscathed—will depend largely on whether your tweet is considered to be a commercial endorsement. When does protected commentary on public figures cross the line into actionable commercial endorsement?
It depends on who you are and what you say. Like a sports columnist, you as an individual have a well-recognized First Amendment right to comment on the actions of famous athletes and celebrities. But if you are a company, the answer is less clear. This area of the law is struggling to keep pace with advertisers’ rapidly-increasing use of social media and content marketing to capture the brand-building benefits of celebrity association.
Just ask New York-based drugstore chain, Duane Reade. In 2014, it tweeted a photo of the actress, Katherine Heigl, carrying a shopping bag from one of its stores. The tweet included the caption: “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.” Heigl sued for $6 million, and the case settled for an undisclosed amount.
The cause of action at issue is a creature of state law, usually called the “right of publicity” or “misappropriation.” Like most states, Texas recognizes a common law claim for unauthorized appropriation of a person’s name or likeness, and the Texas Property Code provides a separate cause of action for the unauthorized use of some deceased individuals’ names, voices, signatures, photographs, or likenesses.
But courts also have long held that the First Amendment protects the use of a person’s name, likeness, or life story in expressive works. Last year, the U.S. Court of Appeals for the Ninth Circuit rejected the misappropriation claim of an Iraq war veteran who alleged that the main character in the Oscar-winning film, The Hurt Locker, was based on him. The court held that the movie was “not speech proposing a commercial transaction,” and thus its use of the plaintiff’s personal story was constitutionally protected.
As the medium becomes more commercial, though, First Amendment protection becomes less certain. In Benavidez v. Anheuser Busch, the Fifth Circuit dismissed the misappropriation claim of a veteran whose heroism had been recounted in a 13-minute documentary produced by the beverage maker. The court recognized that the documentary—as well as its airing at company events—might give Anheuser Busch increased goodwill in the Hispanic community, but ultimately held that this “incidental benefit” was insufficient to support a claim for misappropriation in the absence of an offer to sell a specific product.
Yet even steering clear of specific product pitches may not be enough to avoid misappropriation claims by famous athletes and celebrities. In 2014, the Seventh Circuit reversed the dismissal of basketball star Michael Jordan’s misappropriation claim against Jewel-Osco, a Chicago-area chain of food stores. Jewel–Osco had placed an ad in a special issue of Sports Illustrated, published to commemorate Jordan’s election to the Hall of Fame. The ad featured a congratulatory message, which incorporated Jewel-Osco’s “just around the corner” tagline, directly above a photo of a pair of high tops emblazoned with Jordan’s iconic #23.
The Seventh Circuit held that the ad was commercial speech even though no specific product was being offered because the ad burnished the Jewel-Osco brand and enhanced consumer goodwill. The case eventually settled for an undisclosed amount after Jordan won a $9 million jury verdict against another grocery store chain that had published a similar ad accompanied by a coupon for steaks.
Unfortunately, the legal landscape is not likely to become any clearer anytime soon. Last year, the U.S. Supreme Court denied certiorari in Davis v. Electronic Arts, a closely-watched misappropriation case involving the use of players’ images in the Madden NFL videogame. That case would have given the Court an opportunity to set standards for distinguishing between noncommercial and commercial works that feature a celebrity’s name or likeness.
Without this needed clarity, advertisers’ use of celebrity names and likenesses in social media and content marketing will remain a minefield. Tributes, commentary, and observations that mention or allude to celebrities or other notable public figures should be vetted carefully to determine the likelihood that the message could be considered a commercial endorsement. Sometimes, even minor tweaks can save your tweet.
Marc Fuller is counsel at Vinson & Elkins LLP, where he practices in the areas of media, privacy, and commercial speech. He can be reached at firstname.lastname@example.org.