Celebrity is a currency of great value. TMZ, Entertainment Weekly, E!, and innumerable gossip websites and publications prove the point beyond dispute. A group of Olympians including Mark Spitz, Greg Louganis, Jackie Joyner-Kersee, and Amanda Beard have sued Samsung Corporation for using their image to endorse the company without their consent. So, it’s not uncommon that commercial advertisers want to push the edge of the envelope and find ways of using the names, likenesses, and other indicia of celebrities (without obtaining their permission and without paying them) in order to get the attention of us, the consumers.
There’s a line between news and a commercial endorsement. Because the media in the United States is dominated by for-profit, commercial entities, famous people and advertising are often in proximity. Cases involving baseball players and actors such as Dustin Hoffman have set precedents over the years. How close is too close? For example, a story in Entertainment Weekly about Taylor Swift is protected as free speech under the First Amendment. Unless the story is defamatory or otherwise impermissible, she can’t stop the story from running even if it’s unflattering. Her photo can appear on the magazine’s cover – even if that helps sell more copies. (She can write her own song in response, as she did with her Grammy-winning “Mean” reportedly in reply to music industry blogger Bob Lefsetz.) On the other hand, an endorsement for a smartphone by Anne Hathaway would require her consent because that’s a commercial use protected by her right of publicity.
In between those two points things can get a bit blurry. Is a Facebook app asking “How Olympic Are You?” in the “Samsung Olympic Genome Project” such that the 3000 or so celebrity athletes must give their consent – or are they fair game under the First Amendment? The app enables those of us who are not Olympians, in the words of the app’s advertising, to “Discover what you have in common with Team USA athletes. Make amazing connections, earn points, go for prizes and have fun.” The Facebook page for the app goes on to say, “The U.S. Olympic Genome Project by Samsung allows everyone to find out how Olympic we all are. Take quizzes and answer questions to see how you’re connected to TEAM USA athletes. You can also invite your friends and compete to see who’s more Olympic!”
The athletes saw the Genome Project as wrongly trading on their fame. Samsung (which has a relationship with the United States Olympic Committee) and Team Epic, put together the app, saw it as protected free speech. In an early decision, Los Angeles Superior Court judge Ruth Kwan ruled favorably on the defendants’ anti-SLAPP motion (“SLAPP” means Strategic Lawsuits Against Public Participation,” a somewhat arcane but important law that is used to protect free speech from interference via litigation). Judge Kwan later ruled from the bench in December that the app is protected by the First Amendment.
The Olympians lost this round. But, this case may be more like a Decathlon than a 100 yard sprint. The case is significant in determining when there’s a price for fame.
In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.