The right of publicity in the age of social media: Will a 'share' get you #sued?

Social media has become an important marketing tool. Brands use social media for paid advertising, including by hiring social media "influencers" who have a significant social media following and (for a fee) publish posts about a brand's products to their followers. But brands also often look to social media as a way to generate free publicity by maintaining an active presence that reaches the brand's users and beyond, and sometimes without realizing the legal implications for doing so. For instance, when a celebrity is photographed using a brand's products, the brand seemingly has an opportunity to garner inexpensive and timely attention by quickly "sharing," or otherwise promoting the celebrity's post on the brand's own social media page. But there are important legal issues that should be considered before doing so. Otherwise, a seemingly inexpensive moment of publicity can lead to litigation.

Many states have laws that protect the right of publicity. In several, including California, a person's right of publicity is protected both by statute and common law. Generally speaking, the "right of publicity" protects against unauthorized uses of a person's name or likeness. Under California's statute, it is unlawful to use someone's name or likeness "on or in products, merchandise, or goods, or for the purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent." Cal. Civ. Code Section 3344(a) (emphasis added). A key question under the statutory right is whether the use is for an advertising or commercial purpose. Under the most common recitation of the common law rule, a violation of the right of publicity occurs when a party uses another's name or likeness to its advantage, commercial or otherwise, without consent. White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1397 (9th Cir. 1992), as amended (Aug. 19, 1992). While the common law right may not be expressly limited to advertising uses, when evaluating common law claims, courts often focus on whether the party that used the other's likeness garnered a commercial advantage. See, e.g., Michaels v. Internet Entm't Grp., Inc., 5 Supp. 2d 823, 837 (C.D. Cal. 1998). Much of the case law setting forth the relevant legal standards is now decades' old, so those decisions hardly envisioned all of the types of advertising that are common today. Brands are thus left guessing at how the same standards will be applied to social media.

In determining whether the use of a particular image is a "commercial" use, some courts have borrowed the "commercial speech" standard from the First Amendment analysis. For instance, in one well-known case, Michael Jordan argued that his right of publicity was violated under Illinois law when a grocery store published a full-page congratulatory message to the basketball player in a magazine. Jordan v. Jewel Food Stores, 743 F.3d 509 (7th Cir. 2014). The grocery store argued that Jordan's induction into the hall of fame was a matter of public interest, and thus, its congratulatory message was non-commercial speech. The court disagreed and held that while the message contained both commercial and non-commercial elements and did not propose a transaction in a specific product, it included the store's logo and was a form of image advertising aimed at promoting brand awareness. In another case, a court held that while proximity to a company logo might have some bearing on whether the element of "commercial advantage" is satisfied, the lack of proximity does not automatically defeat a right-of-publicity claim. Smith v. Cash Money Records, Inc., No. 14-CV-2703, 2018 WL 2224993, *9 (S.D.N.Y. May 15, 2018). Put simply, the distinction between commercial and noncommercial speech is not always so clear. See New Kids On The Block v. News Am. Pub., Inc., 745 F. Supp. 1540, 1545-47 (C.D. Cal. 1990), aff'd, 971 F.2d 302 (9th Cir. 1992).

There is not yet much published case law grappling with whether (and when) something is "commercial speech" or "advertising use" in connection with social media posts by brands. Many of these types of cases have settled or are still pending. For instance, in 2014, the retail chain Duane Reade was sued for $6 million by actress Katherine Heigl after the chain posted a picture of Heigl carrying Duane Reade shopping bags on its social media pages with the caption "Don't you just love a quick #DuaneReade run? Even Katherine Heigl can't resist shopping at #NYC's most convenient drug store!" Heigl v. Duane Reade, Inc., No. 1:14-CV-02502 (S.D.N.Y. Apr. 9, 2014). The case settled with Duane Reade making a payment to a charity selected by Heigl.

Right-of-publicity claims are not limited to just celebrities, either. In another recent case, a plaintiff sued Groupon after it posted one of her Instagram photos (a picture of her at an Illinois restaurant) on the restaurant's Groupon Deal Page. Dancel v. Groupon, Inc., No. 18-C-2027 (N.D. Ill. Mar. 4, 2019). While the court denied the plaintiff's request to certify a class of individuals who had also had their Instagram images used by Groupon without permission, the plaintiff's individual claim is still pending.

In the era of digital advertising and social media, right-of-publicity claims will likely become more common. The bottom line then, is that when an advertiser sees an image of someone using their product and considers reposting it, the short answer is #notsofast. While we wait for the law to catch up with the speed at which media and advertising move, we are also left, in some situations, with very old case law to determine what things like "commercial use" even mean. Moreover, there are myriad issues to consider in addition to whether a post might implicate someone's right of publicity, such as copyright (and the copyright in a photograph not only may be, but often is, owned by someone other than the person in the photograph, to further complicate matters) or trademark infringement or false endorsement. And the analysis of each of those issues requires consideration of not only the different claims that could be asserted but also the unique defenses applicable to those claims.

So what are advertisers to do? Advertisers and brands should ensure that their social media and creative teams are educated on these issues, and consider providing a checklist of issues for those teams to consider before sharing others' posts on social media. While the publicity received from reposting another's image may at first be free, litigation rarely is, even where the defense of a claim ultimately is successful. As a practical matter, brands may best be served by remembering that just as there is no free lunch, there is no free advertising, and deciding whether to use others' likenesses will require at least the investment of time to consider carefully all of the possible issues that such a use may present. 