Rihanna, SJP, Anna, "false endorsement," and the "right of publicity"

Posted by Charles Colman

So Kate Moss, most notably of LOF fame, is winding down her Topshop collaboration (as she gears up for a musical collab.) Rihanna, briefly rumored to step in as the next "celebrity designer" for the fast fashion retailer, has now announced there is no such deal in the works.


Let's put aside the question of joint authorship, as I just addressed the topic yesterday-- and besides, none of us has any idea how much creative input untrained designers like Kate Moss or Rihanna really have in the lines that bear their names. (Let's hope, for reasons explained in yesterday's post, that Rihanna and fresh ex Matt Kemp didn't collaborate on any of Ri's hits.) Rather, the lesson for today is on the use of celebrity names and images, and specifically, the laws that ensure Topshop can't just open one day with a new "Rihanna feather dress" or a "Kate Moss... spring ensemble."


Most people have an intuitive sense that using someone else's name or identity to sell a product is "wrong," and has to be actionable (legalese for "you can sue for it.") They're generally right, though it turns out to be fairly difficult to draw a line between permissible and impermissible uses of celebrities' personae.


So why, exactly, do Rihanna and Kate have essentially airtight cases against companies that try to use their names or images to sell clothes without their consent? First, there's your basic trademark action, which in this context is typically referred to as a "false endorsement claim." The crux of a false endorsement claim is that the use of the celebrity's name or persona creates a likelihood of confusion among consumers as to the celebrity's sponsorship of, or affiliation with, the product. For example, in a famous 1985 case, a video rental chain got nailed for using a Woody Allen look-alike in an ad, without the actor's permission. In a much more recent case, Allen brought suit against American Apparel for an AmApp billboard containing an Annie Hall still of Allen as a rabbi. According to the AP, via Business Pundit, Allen "does not endorse products in the United States" (which leads one to wonder what products he endorses outside the United States, a là "Lost in Translation.")


Apart from false endorsement claims, which are generally brought under the federal Lanham (trademark) Act, celebrities (as well as non-famous individuals, though most of the non-Borat/Bruno case law involves stars) can invoke the so-called "right of publicity," which exists in statutory or "common-law" (i.e., judge-made) form in each of the fifty states. Right of publicity statutes, like this one from New York's Civil Rights Law, generally prohibit the use, "for advertising purposes, or for the purposes of trade, [of] the name, portrait or picture of any living person without having first obtained the written consent of such person[.]" But r/o/p statutes differ in significant ways, such as the scope of the right (does it extend beyond the life of the celebrity?), the scope of prohibited uses (how broad is "trade"?), and the available defenses to otherwise actionable uses. On the last point, it's important to note that the First Amendment does provide a sort of "ceiling" on the right of publicity; whether or not listed as a statutory defense, critical and/or newsworthy uses of people's names and images will generally be immune from suit. A full analysis of the defenses to right of publicity claims would take pages and pages, and is beyond the scope of this post. But before wrapping up, let's quickly look at two uses of celebrity personae that potentially present right of publicity issues-- one that I consider "on the border" and one that strikes me as squarely in First Amendment territory.


The first use is the 2010 best-dressed countdown at StyleSpot.com, which quite cleverly ranks the celebrity in question--(here, Sarah Jessica Parker)-- then displays a number of items that the winning celebrity has worn in the recent past. Naturally, a user can click on these items, and is then taken to a website where s/he can purchase it. Supposing StyleSpot.com gets a cut of any resulting sales (StyleSpot, if so, let's talk), is SS using "for advertising purposes, or for the purposes of trade, the name, portrait or picture of [SJP] without having first obtained the written consent of such person"? I haven't combed through the case law, but this seems a rather close call.


Quite obviously in the clear, by contrast, is new "transversal" fashion mag CANDY, which has run a (frankly, spectacular) photo spread of drag versions of Grace Coddington, Anna Wintour, and Tavi Gevinson. Again, without exhaustively researching the issue (you'll have to pay me for that), my money is on CANDY here. First, when the disputed item in "trade" is the actual image of the celebrity, or a publication containing that image, and not a separate product the celebrity's persona has been exploited to sell, it strikes me as an uphill battle to argue that the use falls within what lawyers call the "plain meaning" of New York's r/o/p statute. (Of course, other states' r/o/p statutes might be worded more broadly.) Such a broad interpretation of the statute would likely render any sale of a celebrity's image a violation of New York's r/o/p law, a "patently absurd result" (another lawyer favorite.) The drag element also takes us into parody-land, where the First Amendment starts to assert itself with extra vigor. With that said, I could see a judge straining to grant young Tavi the protection of the law, while leaving Grace and Anna to fend for themselves in this cruel, cruel world.


Of course, this is just a guess.


I'm also betting, by the way, that while all of the images I link to in this post are technically part of a blog that I am ethically obligated to describe as "Attorney Advertising," the educational value and newsworthiness of the post put me in the clear. When it comes to playing defense in intellectual property disputes, the user generally wants to have been engaged in education, parody, news coverage (the greater the "public interest," the better), and especially in the copyright arena, some sort of "transformative use" of the intellectual property at issue. Bonus points if you can get your use in all four categories.