Can Brands Use a Celebrities in Social Media Without Permission - Ad Age Mini Law Lesson

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a summary of the laws pertaining to use of celebrities in social media

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Can Brands Use a Celebrities in Social Media Without Permission - Ad Age Mini Law Lesson

  1. 1. Mini Law Lesson: Can Brands Use Celebrities inSocial Media Without Permission? Brian Heidelberger bheidelb@winston.comInfo @ www.winston.com/bheidelberger
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  3. 3. What is Prohibited? Like it or not, you are marketing a brand  Use of a person’s name, likeness, voice or other identifying characteristic;  Without permission; and  For a commercial purpose What You can do in your personal time isn’t the same as what you can do for a brand 3
  4. 4. Why Don’t We Just Get Permission• Celebs Generally Don’t Grant Free Permission• “Free Advertising” Argument Not Usually Persuasive• Negotiations Take Lots of Time• “Minor Uses” Won’t Necessarily Cost “Minor $$” 4
  5. 5. IMPORTANT DISCLAIMER• I am not your attorney.• This is not legal advice.• I am not advocating violating celebrities’ legal rights!  Celebs are people too 5
  6. 6. Any Way You Cut it You May Get A Letter or Sued• Celebrities are Litigious• Court Decisions Are Inconsistent• Celebs Generally Don’t Go Away Just Because You “Pulled It”  One Jury Awarded $14MM• Even if You Win a Lawsuit or Fend Off the Celeb, The Cost in Time and Legal Fees Will Be Extensive• So Question Shouldn’t Necessarily Be Are You Legally Right – But Rather Will You Get a Claim 6
  7. 7. Risk Spectrum If You Elect to Take the Risk• Cold:  Tweeting Back to a Celebrity Who Tweeted You  Tweeting/Posting Back to a Celebrity Who Positively Mentioned Your Brand In Social Media  Liking a Celeb’s Facebook Page 7
  8. 8. Risk Spectrum If You Elect to Take the Risk Cold: Re-Tweeting a Celeb’s Tweet (Without Suggesting Endorsement/Affiliation) Linking to a article about a celebrity without using their name (e.g., check out who’s in the news today…”) 8
  9. 9. Risk Spectrum If You Elect to Take the Risk• Warm  Tweeting/Posting the Name of a Celebrity in “News-y” Context  Congratulating a Celeb for True Accomplishment via Tweet/Post 9
  10. 10. Court Held This Ad Permissible (Although MJ Appealing) • Lower Court: “Jewel’s economic motivation for producing and placing its page in the commemorative issue does not render the page commercial speech” • On appeal arguments: The judge states that the page was "plainly aimed" at generating goodwill for Jewel through Jordans celebrity. 10
  11. 11. Risk Spectrum If You Elect to Take the Risk• Hot: Tweeting/Posting/Video the Picture of a Celebrity• Hot: Multiple Tweets To/About Celeb• Hot: Facebook Poll/Other Content About Celeb• Hot: Pinning Picture of Celeb on Your Page/Brand Pinboard S 11
  12. 12. Risk Spectrum If You Elect to Take the Risk• Hot: Linking a Celeb to Your Product When They Did Not Expressly Engage You• Hot: Using Celebs Social Media Posts Outside of Social Media• Hot: Re-Publishing Articles from Mags of Celebs Using Your Product 12
  13. 13. Burberry Sued by Bogart Burberry Facebook Page “Humphry Bogart, wearing aOriginal Movie Shot Burberry trench coat, in the final scene of Casablanca” 13
  14. 14. ToyWatch Sued by Sandra Bullock• Allegation: A video was placed on YouTube with the description "the white watch worn by Sandra Bullock in the movie The Blind Side. 14
  15. 15. Thermador Sued By Julia Child Foundation• Pinterest page: “Julia Child had Thermador appliances in her beloved kitchen.”• Facebook page: “1970 - Julia Child uses Thermador in her critically acclaimed PBS TV Series.” 15
  16. 16. Recent Court Held Samsung Olympic Genome App Permissible• Facebook App took users’ Facebook profiles and made connections to Olympic athletes.• Court held protected speech even if Samsung wished to derive some brand benefit and gain followers on Facebook. 16
  17. 17. If Elect to Take the Risk: Risk Mitigation Techniques• Avoid Celebrities Who Have Sued Before/Litigious• Avoid Celebrities Who Have a Strong Reason to Bring a Claim  e.g., endorses competitor, has a big project coming out, ad depicts them in a negative light, product celeb won’t want to be associated with, etc.• Avoid High Profile Uses or Uses Which Are Costly to Change  TV and Print Are Higher Risk Than More Transitory Social Media 17
  18. 18. If You Do Get a Letter• Ad Age Mini Law Lesson: “How to Handle a Cease and Desist: Don’t Freak Out!”  Search AdAge website; or  Youtube.com/brianheidelberg er 18

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