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Response TV
Author: Linda A. Goldstein
Legal Review: The Celebrity Scare. Vol. 8
Date: 04-01-1999

Legal Review: The Celebrity Scare

What do Vanna White, Bette Midler, Tom Waites, George "Spanky" McFarland, Clint Eastwood, Johnny Carson, Woody Allen, members of the Cheers cast, the heirs of The Three Stooges and Dustin Hoffman have in common? Each has filed a lawsuit in recent years alleging misappropriation of his or her name or likeness in advertising, and the results of these cases--such as Dustin Hoffman's $3 million award against Los Angeles Magazine in January of this year--have shaped the way in which all advertisers must approach the use of celebrity names and likenesses in promotional material.
The problems addressed by these cases do not arise in most traditional product endorsement situations because the advertisers in those situations customarily negotiate written celebrity spokesperson agreements specifically granting permission to use the celebrity's name, photograph, likeness and voice.

Do you need permission?

But what about those situations in which the advertiser wants to reference a celebrity without written consent?

The solution lies in application of the rules underlying the right of publicity. The right of publicity is the right to control the commercial exploitation of one's name, likeness and other characteristics of identity, and it is found in the statutes or case law of most states. In some states, the right of publicity descends upon death to the heirs of the celebrity.

In the Dustin Hoffman case, Los Angeles Magazine utilized a computer- altered image of Hoffman in a fashion spread to promote clothing advertised in the magazine. The fact that the photograph was part of an article discussing fashion did not shield the improper use of Hoffman's photograph under the First Amendment. The court found that the use violated Hoffman' s right of publicity and awarded him $1.5 million in compensatory damages, $1.5 million in punitive damages and attorney's fees.

In The Three Stooges case, a Southern California artist created a charcoal sketch of the famous trio, which he then reproduced on prints and T-shirts and sold for profit. The court found that the use of The Three Stooges' likenesses "on or in products" was sufficient to trigger the right of publicity statute and that the use did not need to be for the specific "purpose of advertising." In addition, the court determined that, notwithstanding other cases in which messages emblazoned on T-shirts were accorded First Amendment protection, the "non-informational, commercial" use of the sketch in this case was not so protected.

Of particular significance in this case was the fact that the appellate court's ruling affirming the lower court's judgment constituted the first appellate decision in California upholding California's Civil Code Section 990, which provides civil liability for the use of a deceased celebrity's name or likeness "on or in products, merchandise or goods." The plaintiffs in the case were represented by Bela G. Lugosi, the attorney-son of the late actor who portrayed Dracula. Lugosi was a proponent of Section 990, having previously unsuccessfully sued Universal Pictures to stop the licensing of merchandise containing the likeness of his father.

How far will it go?

Bette Midler was instrumental in creating what has come to be known as the "Midler tort" in California. About 12 years ago, she sued Lincoln- Mercury and its advertising agency, Young & Rubicam, alleging that the use of a sound-alike in a Mercury television commercial constituted an unlawful misappropriation of her persona. Following dismissal of her case at the trial court level, the Ninth Circuit Court of Appeal held in a 1988 decision that, "... when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California."

Several years later, Vanna White sued Samsung Electronics for misappropriation of her likeness, under the theory that Samsung's use in a series of print advertisements of a robot wearing a white dress and a blonde wig violated her statutory and common law rights of publicity. In a surprising 1992 Ninth Circuit decision, the court affirmed dismissal of her statutory claim but found that her common law right of publicity protected her "identity." Setting the stage for future cases to come, the court stated, "It is not important how the defendant has appropriated the plaintiff's identity, but whether the defendant has done so." The court went on to say, "A rule which says that the right of publicity can be infringed only through the use of nine different methods of appropriating identity merely challenges the clever advertising strategist to come up with the tenth."

As if the Vanna White case weren't bad enough for advertisers, members of the Cheers cast sued Host International for misappropriation of their likenesses in connection with the creation of a series of airport bars based on the Cheers theme and including animatronic robotic figures named Bob and Hank (not names of characters from the television show). Notwithstanding the fact that Host had licensed the right to use the Cheers name, characters and related material from Paramount, the plaintiffs alleged that they had an independent right that was entitled to protection in this case because the robots constituted their likenesses, which had been used by Host without their consent. In a 1997 decision that went a step further than the Vanna White case, the Ninth Circuit found that an "impressionistic resemblance" apparently not rising to the level of similarity could constitute "likeness" under California's right of publicity statute.

In light of the above cases and the trend in right of publicity cases, any advertiser should think twice before using a celebrity's name or likeness or, for that matter, any other indicia of a celebrity' s identity in advertising without getting written consent to do so. The exceptions to the consent requirement are few in number, and their application requires a detailed understanding of the law as it applies to the intended use of the celebrity's persona.

Lawsuits place limits on the use of celebrity names and likenesses in advertisements

Linda A. Goldstein, Legal Review: The Celebrity Scare. Vol. 8, Response TV, 04-01-1999, pp 62-63.