Finding IP Value
Posting of “Selfies” Taken with Celebrities at Company Functions – Possible Violation of Publicity Rights?
Your company sponsors, at your offices, a charitable, newsworthy event. Local celebrities attend. Afterwards, you have numerous “selfies” of you and your employees with those celebrities. You want to place various “selfies” on your website but don’t want to go to the trouble of getting the celebrities’ permission first.
While it is always best practice to gain permission, if you don’t, will you violate Tennessee’s law prohibiting misuse of another’s name and likeness for commercial purposes?1 How’s this for a lawyer’s answer: “It depends.”
The Tennessee Personal Rights Protection Act (“TPRPA”) provides that “every individual has a property right in the use of that person’s name, photograph, or likeness in any medium in any manner.” T.C.A. § 47-25-1103. The TPRPA applies, however, only when the unauthorized use is in a commercial, advertising, sponsorship or endorsement context. T.C.A. § 47-25-1105(a).
It is permissible under the TPRPA for one to use another’s name or likeness if the use is in connection with a newsworthy, public affairs or sports-related event. T.C.A. § 47-25-1107(a). But Tennessee courts suggest that if you use the celebrity’s name or likeness in the pretext of a permitted use, but in actuality the use is merely an “advertisement in disguise,” then you may have violated the TPRPA – see Clark v. Viacom International, 2014 W. L. 1934028 (M. D. TN May 13, 2014) at *16.
If the posting on your company’s website of the “selfie” with the celebrity appears in the “news” section of your website and/or the picture is clearly captioned as being related to the celebrity’s attending your newsworthy charity event, then there should not be any violation of the TPRPA.
However, if the posting on your company website of the “selfie” with the celebrity appears in the “testimonials” section of your website and/or is captioned in a way to suggest that the celebrity is endorsing or vouching for your company, its services or products, then there could be a violation of the TPRPA.
These fairly black and white areas (use in connection with news — OK; use in connection with endorsement — not OK) fade to gray, however, when the use of a celebrity’s name and likeness constitutes an “advertisement in disguise.” The “advertisement in disguise” situation is one where the unauthorized use of the celebrity’s name or likeness appears, at first blush in a permitted context, but is portrayed in a fashion that strongly suggests the use of the celebrity’s name or likeness was intended to be an advertisement to convey endorsement or sponsorship. To best avoid this situation, do not over-use any celebrity’s name or likeness in the “selfies” posted on your company website and make sure that there are captions or text to describe the celebrity’s presence as related to the charity event (and, by implication, not an endorsement of your company’s products/services). If in further doubt, consult an attorney and hopefully, after describing the situation, he or she will not say, “It depends.”