Originally Published in the Albuquerque Journal- Business Outlook.
Star gazing takes on new meaning in New Mexico as the state’s film industry continues to grow. You might spot stars like Johnny Depp, Lou Diamond Phillips, Arnold Schwarzenegger and Juliet Lopez in Albuquerque since production on their latest films and television series is now underway. While snapping photos of Hollywood celebrities may seem harmless, what you do with those photos may not be.
The issue of “right of publicity” often pits the private rights of individuals against First Amendment free speech and free press rights. The right of publicity protects celebrities, athletes and public figures from commercial exploitation of their name or likeness. While case law and statutes are not yet well-defined in New Mexico, business owners need to be aware of publicity rights to avoid legal trouble.
Celebrities invest a great deal of time and energy in developing and protecting their public image. Just because a big star eats at your restaurants, uses your service or buys your merchandise does not mean you have the right to turn it into a commercial endorsement without compensation.
Clothing maker American Apparel learned that lesson after Woody Allen filed a federal lawsuit. He claimed American Apparel used his image from the 1977 movie “Annie Hall” on billboards without permission. Allen asserted that the ads violated his longstanding policy of not making commercial endorsements and damaged his longstanding reputation. American Apparel argued that the use of Allen’s image in a satirical or social context was protected under the First Amendment of the Constitution. In 2009, The New York Times reported Allen accepted an out-of-court settlement of $5 million from American Apparel.
The right of publicity can also extend to facial expressions, body characteristics or associations with certain products. Several years ago, a Samsung advertising campaign used a robot, posing next to a board game, wearing a wig, gown and jewelry. A court ruled it so closely resembled Vanna White’s dress and mannerisms from the game show “Wheel of Fortune” that Samsung had violated her rights of publicity.
Even using a celebrity impersonator can cost companies. Many years ago, both Bette Midler and Tom Waits declined to lend their voices to advertise for Ford Motor Co. and Frito-Lay, Inc. The advertisers then found sound-alike performers who could duplicate Midler and Waits’ styles. Both celebrities sued and won.
The celebrity doesn’t have to be a household name to prevail in court. Take the case of Hugo Zacchini, a human cannonball. His act, which lasted about 15 seconds, involved being shot out of a cannon. One night, over Zacchini’s objections, a local reporter videotaped the entire performance and aired it on television while telling the audience they really needed to see the show in person to appreciate it. The Supreme Court ruled that while reporting on the act would not have violated Zacchini’s right of publicity, broadcasting the entire act posed a substantial threat to the economic value of the entire performance. While recognizing the right to report on the act, the Court’s ultimate decision weighed in favor of the right of publicity and the livelihood of the individual affected.
Sometimes you’ll see or hear impersonators on TV and radio shows. Courts have ruled that a person’s name and picture may be used in entertainment parody, but that argument can be a tough sell for a business owner. In the case of Vanna White and Samsung, the manufacturer tried to argue the use of the robot was really a parody. The court determined the difference between a “parody” and a “knock-off” was the difference between fun and profit. However, there is no clear line, and whether a particular use is commercial or communicative is very subjective and fact-specific.
For business owners, it’s better to play it safe. If you see a celebrity, be polite and happy for the business, but before using his or her name, image or likeness, be sure to get permission first.