Marketers understandably get excited when a celebrity is spotted using their product. It’s validation of all their efforts! Unfortunately, just because a celebrity has used the product – even if they have publicly posted about it – doesn’t mean the company has the right to leverage that in advertising.
Several companies have found this out the hard way. The most recent addition to this club is Maree Inc., a luxury bedmaker. Maree Inc. allegedly posted on Instagram a photo of NBA star Giannis Antetokounmpo that showed him on a luxury bed and the company called him “our client.” This post was in 2021, following Antetokounmpo leading the Milwaukee Bucks to an NBA championship. The complaint alleges that Antetokounmpo’s representatives sent multiple requests to Maree Inc. to remove Antetokounmpo’s name and likeness from its ads, including a cease-and-desist letter. Eventually, this culminated in a 2023 lawsuit, which included claims related to this issue as well as breach of contract. The parties settled on undisclosed terms this year.
This case is remarkably similar to an earlier iteration involving Michael Jordan. After Jordan was inducted into the Basketball Hall of Fame in 2009, two Chicago grocery stores ran ads congratulating him on his career. Neither of these ads featured an image of Jordan or claimed he was a client. One of the ads didn’t include anything overtly promotional – it was a few sentences about Jordan, the brand name and an image of basketball shoes with the number 23 on them. That company ultimately settled on undisclosed terms. For the other ad, a jury awarded Jordan $8.9 million.
As these cases show, when a company “speaks,” it is almost always going to be interpreted as an advertisement. This can be tricky in the social media age, when a viral meme may seem like fair game because everyone’s posting it. A meme is a meme when posted by individuals, but when posted by a company, it typically becomes an advertisement. And ads cannot feature celebrities, or other individuals, without their permission, even if an ad only reflects something the person has already said. To do so infringes on the individual’s right of publicity and potentially implies a false endorsement. A celebrity can say they love your product, but a company can’t say that same thing unless it has the celebrity’s permission. And the risk here can be high because celebrities are often quick to protect their image, and they have a straightforward legal case for doing so. Because they’re usually already engaged in various marketing deals compensating them for use of their image, celebrities can readily demonstrate what their damages are for the unauthorized use of it in an ad.
In short, if you want to include a celebrity in an advertisement, you’re probably going to have to pay them for it.
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