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

1. Mini Law Lesson:
Can Brands Use Celebrities in
Social Media Without Permission?
Brian Heidelberger
bheidelb@winston.com
Info @ www.winston.com/bheidelberger

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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
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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 $$”
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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
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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
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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
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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…”)
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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
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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 Jordan's
celebrity.
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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
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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
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13. Burberry Sued by Bogart
Burberry Facebook Page
“Humphry Bogart, wearing a
Original Movie Shot Burberry trench coat, in the final
scene of Casablanca”
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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.
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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.”
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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.
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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
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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
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