We are all celebrities today - the right of publicity & commercial value social media has created
The right of publicity is the “right to control the commercial use of one’s personal likeness.” A person’s likeness can amount to his or her name, voice, face, or any other identifiable element, “which may function as a ‘brand’ of sorts.” The right of publicity protection originated as a common law doctrine, though many states today have passed statutory protections. Today, either under statute, common law, or both, thirty-three states recognize the right of publicity. Unlike a trademark infringement or false endorsement claim, a right of publicity claim “does not require any evidence that a consumer is likely to be confused.”
In Zacchini v. Scripps-Howard Broadcasting Co., the only right of publicity case taken up to the Supreme Court of the United States, a famous “human cannonball” made his living by performing his fifteen-second performance in front of a live audience who could buy tickets to come see his act. A local news station televised his entire performance, which plaintiff argued detracted from the demand of people willing to pay to see his act. The court noted that “the purpose of the right of publicity is to provide an economic incentive for [the plaintiff] to make the investment required to produce a performance of interest to the public.” In essence, the right of publicity “is intended to remedy economic harms that are associated with the loss of sponsorship opportunities or the loss of goodwill, both of which reduce the “business value” of the celebrities’ identity.” The Supreme Court further held that in order to establish a prima facie case for a right of publicity violation, “only one element need be proven – namely, the unauthorized use by defendant of plaintiff’s picture or name for defendant’s commercial advantage."
Some commentators believe only celebrities can have a right of publicity, which attaches to those who “consciously seek pecuniary reward from the exploitation of the publicity value of their names and likenesses.” Even these commentators, however, have acknowledged that “anyone may achieve instant fame through media exposure” and that has never been more real than in the social media environment of today. Although it is now widely accepted that non-celebrities have a right of publicity, it is important to understand the argument, as it is particularly relevant to models and their industry.
We Are All Celebrities Today.
What exactly is a celebrity? Surely there are a number of people to whom most of us would apply that label. In a legal sense, however, defining the term is more difficult. Some believe that a celebrity is an individual who has achieved fame. Fame, then, is what we need to define. Some have adopted the belief that “fame is what they say about you” while one’s reputation is what they “think” about you, so celebrity therefore means a person who many people talk or know about. This is a subjective test, however, as some people may know of “celebrities” in one industry, while others may have never heard of that person. Social media creates even more of a blur, as a viral video creating a fleeting “celebrity” could just as easily be forgotten about a week later. Additionally, “celebrity status is created and maintained by the media.” The right of publicity protects both “celebrities” and non-celebrities, since the term celebrity is “an undefinable and vague concept.” No longer can “social media website owners and advertisers . . . assume that ‘ordinary’ internet users lack the stature to assert publicity rights under the various state right of publicity laws stemming from the use of their names and likenesses.”
Celebrity status is helpful in analyzing the commercial value of one’s right of publicity. One commentator persuasively argues that “[r]ight of publicity law should not draw a legally critical line between ‘celebrities’ and ‘non-celebrities.’ Accordingly, “fame” should only apply to the economic value of an individual’s identity and not whether they are privileged a right of publicity. “With th[e] expanded notion of “celebrity” come[s] unique challenges in striking a balance between these individuals’ rights to protect their names/images and capitaliz[ing] on the exploitation of the same during the frequently short length of time that they are famous."
In addition to using an individual’s name or image, the Supreme Court noted this use must be for a defendant’s commercial advantage in order to violate a right of publicity.” So, what does commercial advantage mean? According to § 45 of the Lanham Act, commercial use means when something is “used or displayed in the sale or advertising of services and the services are rendered in commerce.” When you hear the term commercial, you may think of a large corporation or business trying to make money. One way companies make money is through advertising. Businesses have been utilizing social media to target customers and advertise products and services for a number of years. For example, about 83 percent of Fortune 500 companies have corporate Twitter accounts and 80 percent use Facebook. Even more interesting is that in 2015, companies were projected to spend over $23.6 billion worldwide on social media advertising. Social media’s ability to reach millions of consumers at once gives it an edge in advertising as compared to regular magazines or newspapers. In 2013, when Facebook had 1.23 billion active monthly users, the largest American magazine was AARP The Magazine, which had only 22.3 million subscribers. With social media, however, an advertisement may be harder to spot than in traditional channels, such as magazines or television commercials.
Social media has allowed advertisements to become both formal and informal. While formal advertisements are often clear to the consumer as well as to the brand and individual, informal advertisements need analyzing. What then constitutes an advertisement? There can be commercial advertisement and noncommercial advertising, and the distinction may turn on whether there is a push for a transaction to occur. Think of a company like Nike who congratulates the winner of the Boston Marathon in a Tweet that states “Congratulations Yuki Kawauchi for winning the 2018 Boston Marathon!” Is this an advertisement? This situation arose in the Seventh Circuit where a grocery store featured a congratulatory message to Michael Jordan. “The grocery store’s congratulatory page included both its logo and a play on words with its slogan.” The court found that the message was in fact an advertisement, even though the message seemed to only promote “brand awareness or loyalty,” as opposed to customers purchasing a specific product. The court acknowledged the changing effect that social media has on what constitutes an advertisement, and noted that “modern commercial advertising is enormously varied in form and style and relies on subtle cues so a message can still be a commercial advertising when it promotes brand awareness or loyalty rather than explicitly proposing a transaction in a specific product or service.” The court looked at the goodwill that the defendant obtained and determined that that made it an advertisement.
“Informal advertising may be unintentional and take the form of using or posting about a product,” such as the “Kate Effect” of clothing Kate Middleton wears, which she is not intentionally advertising but simply wearing. The “Kate Effect” and others like it often causes merchandise to sell out. Furthermore, “ambiguous relationships between celebrities and companies may cause legal problems if the person in the photo is later surprised to find herself at the center of an advertising campaign that she did not approve.”