Celebrities Are Better Than You, Legally Speaking

I am pointing at the Olympic flag because I wish to bring attention to the plight of the celebrity athlete. Also because I am a statue and unable to move my hand. Pigeons poop on me a lot.

Hot on the heels of our last Olympic post concerning how you’re probably safe to post Olympic photos to Facebook, now we have another social media Olympic story hitting the wire.  This time, 18 Olympic athletes have sued Samsung over a Facebook app that attempts to show how you are connected to the Olympians.  As with the post on the DoJ lawsuit against Apple, we only have half the story right now.  This entire post comes with a huge caveat that we may not know all the relevant facts.  But what we do know, like in the Apple case, is compelling.

Samsung is being sued by these 18 athletes for using their name and image in connection with Samsung’s commercial activity on a Facebook app.  They allege that Samsung sent out emails to the various athletes giving them the ability to opt-out of the app.  Some athletes claim they deleted this email (read or unread) and others claim they responded back to Samsung saying they did not want to participate.  Either way, these 18 athletes were in the app and weren’t pleased about it.

The legal issues in this case deal with rights of publicity.  These are rights that celebrities enjoy, not regular people.  You’ve heard about the various ways celebrities are treated better than you–now you can add a whole category of rights they have that normal people do not.  And yes, normal people have tried to assert these rights in court–nothing can be more embarrassing than having a court say you’re not important enough to claim a right of publicity.  Well, I suppose the long walk home from Let’s Make A Deal when you dressed like a hot dog but didn’t get picked for a game is equally embarrassing.  But not more.

Rights of publicity are a fascinating area of law and I periodically teach a class on the subject (it’s called “Zombies (And Lawyers) Ate My Retweet Button”) because it involves a number of awesome elements: celebrities, vampires, zombies, Motley Crue, David Letterman, and Michael Jackson.  I’m still working on distilling it down to a series of web videos, but for now let’s just cover the basics.

Rights of publicity are state based but most states have laws covering these rights and virtually all of them lay out the same basic framework.  These rights are violated if the following three elements are met:

  1. The material that violates the rights of publicity have been disseminated.
  2. A reasonable person would think the material represents the celebrity.
  3. The representation was made for commercial gain; OR the representation sabotaged the celebrity’s commercial use of their image.

The huge expansion of rights of publicity we’ve seen over the past few decades is mostly due to that third element.  These days celebrities get paid to simply show up to parties, so it’s hard to imagine an activity where they couldn’t get paid.  With element 3 almost always being easy to meet, these rights can essentially now be violated by publishing material (element 1) where a reasonable person thinks it represents the celebrity (element 2).  Unless the celebrity allowed the activity, companies must be sure to explain that the celebrity is in no way affiliated with the material/company (and even that may not be convincing enough) or the company just can’t use the celebrity’s image or likeness.

In this case, the Olympians have made a strong case.  Their name, image, and several key facts about them were used (hobbies, hometown, schools, etc.).  The app was obviously disseminated (in fact, the app is still live although I can’t tell if the 18 athletes have been pulled).  And I think a normal person would believe the app represents the celebrity to the point that the celebrity was in on the promotion.

If the athletes’ allegations are true, Samsung committed two heinous errors.  First, violations of publicity rights, like any other rights, cannot be forgiven through a silence-equals-consent scheme.  Otherwise you could imagine how copyright holders would be flooded with emails of how their movies/music/books will be copied and sold on the Internet unless the owner contacts them–and if one email  slips through then the sales are legitimate.

Second, even if Samsung believed in their email-to-opt-out scheme, some athletes allege that Samsung didn’t even follow that methodology as athletes opted out but were still included.  That’s a huge blunder for such a questionable tactic.

Although the end result appears to be a bad situation for Samsung it isn’t hard to imagine all the mistakes that could have led to the result.  One of the big mistakes could be a misunderstanding of celebrity rights of publicity.  Samsung is an official sponsor of the Olympics so perhaps a few groups in the company thought that meant all the participants as well.  The problem, of course, is that some of those participants are celebrities.  Celebrities that have more rights than normal people and aren’t afraid to enforce them.

For years you’ve envied celebrities for their ability to compete on Celebrity Jeopardy and look really smart by answering simple questions.  Now you can envy them even more for a whole category of rights that you don’t have.  I’ll take “Thanks For Piling On” for $800, Alex.



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Filed under Celebrities, Commercial Activity, Facebook, FTC Endorsement Guidelines, Social Marketing

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