In this second blog of our series on social media promotion we are looking at the use of names – of people, brands or businesses – and likenesses.
Areas of law that often arise at the juncture of names and likenesses, and social media, are the right of publicity, trademark protection and defamation. Although there are variations in different jurisdictions, the right of publicity generally provides that each person has the exclusive right to commercially exploit their own name and likeness; use by anyone else requires permission. Trademark laws also protect names, but the focus is on the impact on the public: where a company’s use of a name is likely to cause the public to be confused about the source of products or services that use is usually prohibited. Defamation is a false statement made, e.g., via social media, which causes harm to an individual or business, such as a derogatory statement that hurts the individual’s reputation and as a result diminishes the economic value of that person’s name and likeness.
So, how do these issues arise on social media? Often through the use of a celebrity or well known company name in promotional activities or unauthorized fan accounts. We mentioned the Heigl suit in our last blog, a case that arose when Heigl inadvertently became a walking ad with her Duane Reade shopping bag. Perhaps more problematic than the use of the photo alone was Duane Reade’s tweet about it (“Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore”). In another well known case, the owner of intellectual property rights relating to the actor James Dean sued Twitter and “John Doe” Twitter users to stop the use of the @JamesDean account, alleging trademark, right of publicity and unfair competition claims, among others. An earlier case involved a Facebook group set up to solicit models using the name “Nine West – Model Auditions.” Nine West asserted claims of trademark infringement. Interestingly, using social media to complain about perceived violations of the right of publicity can lead to counter complaints for defamation. For example, in 2009, Kim Kardashian was on the receiving end of a defamation suit after posting on her Twitter account that a doctor was falsely promoting her use of his “Cookie Diet” by linking to an article that reported Kardashian liked the diet.
What should you do to reduce the risk of claims that you are infringing someone’s rights?
- Do make sure the context is clear – if you’re using another company’s brand name, whether for comparative ads or a blog about the reasons why such-and-such’s customer service is terrible, give context to avoid confusion (short designations that will fit within the spatial limits of social media, such as designations like “fan” or “Unofficial” before the account name)
- Don’t use someone’s name in your promo messages without getting consent, and know that just because a celebrity uses your product and that turns up online, does not mean it’s free for all uses (e.g., the Heigl and Kardashian cases)
- Do have a good reason to use another’s name even when not promotional – good reasons include product reviews, news, parody or fan sites
- Do consider the consequences of re-tweeting, re-vining, etc. celebrity shout-outs about your services or complaints about your competitors
- Do be familiar with and follow the policies of the social media hosts, which may go beyond what the law would require (e.g., Twitter’s Trademark Policy goes further than traditional trademark infringement standards in prohibiting any activity that “may mislead or confuse others”)
- Don’t assume those managing your social media presence are handling your compliance – make sure they know and adhere to the rules