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IP question, using famous faces
I’m usually quick to dish out legal advice myself (the “I’m-not-an-attorney-but…” kind), but I’m asking some myself this time.
We have a potential client, a financial institution, who gave us a script for a television commercial (written by their in-house marketing person). In this script they reference three different people of note who hail from the small hometown where this institution is located. One is a sort of world bon vivant political activist, one is a musician and musical pioneer, and one is a well-known actor. All three of these people are deceased. They are not mentioned by name, but the script has these people shown.
I immediately told them “Well, you can’t do that,” at least not without securing the rights from the estates of these people (and probably paying a great deal). I gave their marketing person the usual “Elvis is making a lot more money dead than alive” speech.
However, the more I think about it, I’m wondering if it might fall in a doable gray area. Each of these people is iconically symbolic of the area. One of them is world-known… another has yearly week-long music festival in his honor… and so on. But most importantly, I think, none of these people are endorsing the client, they are just referenced sort of in the “what makes our area special” vein.
What are your thoughts?
I have a call into a good friend who is an IP attorney, and am anxious to hear what he says. But I’d love to hear this group’s thoughts as well.
T2
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Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com
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6 Replies
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Doesn’t sound like slander….but they do stand to make money from the likeness of the local “celebs.” Worst case they air the spot and you are contacted to take it down. You have a 1 in 3 chance of that happening. So are they willing to scrap the spot if you are asked to take it down? That’s the question.
Rich Rubasch
Tilt Media Inc.
Video Production, Post, Studio Sound Stage
Founder/President/Editor/Designer/Animator
https://www.tiltmedia.com -
[Rich Rubasch] “Worst case they air the spot and you are contacted to take it down.”
…yes that is probably worst case, but that “worst case” would cost the clients a couple of tens of thousands of dollars in a now-worthless production.
Anyway, I did talk with my friend the IP attorney a little while ago… he said “No way, no how” in any kind of commercial usage without the rights secured and paid for to the various estates. He helped write the statue in our state governing usage of the “likeness and indicia” of a person, and says what this client is doing is verboten regardless of whether the person is appearing to endorse the client or product.
Much as I suspected.
T2
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Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com
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Hi Terry,
I may be a little late here, but ABSOLUTELY… dead or alive you need to get the rights to use their photos an a commercial.
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[Greg Ball] ” ABSOLUTELY… dead or alive you need to get the rights to use their photos an a commercial.”
The reason why is that many people, both dead and alive, have trademarked themselves. Not just biggies like Marilyn Monroe and Albert Einstein (the latter of whose estate donates all proceeds to the political causes that Albert cared most about), but also Madonna, Blue Ivy Carter, and many others. That includes using lookalikes or anything along those lines.
When you get sued for copyright infringement, the most they can sue your for is the amount of the rights you should have paid for, plus damages within a specific limit.
Trademark holders can sue you for the entire value of the trademark — say, the amount that Albert Einstein’s likeness will EVER earn. Yikes!
Not that you were headed down this road of course, Todd, but it’s important for other folks who’ll find this thread down the line to understand, as your IP lawyer put it, “No way, no how” — and THEN some.
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Well we obviously can’t use their likenesses in a blatant fashion, nor would we try (or want) to…
It’s those gray areas that have us a little fuzzy (mixing metaphors there, I know)…
For example, how about footage (either real or staged) from the community’s music festival bearing the name of this musician? According to my lawyer friend, showing the bronze statue of the guy that’s on the town square is probably to akin to using his likeness. However if his name is seen on, say, a banner on stage where we see a musician performing… well, that’s not so clear. My lawyer friend says that is likely incidental enough to be in the clear.
Same for the activist lady, whose home is a landmark and tourist attraction. The attorney says the home is clear… but there is her name on a sign there. That one is pretty fuzzy, he says.
As for the famous actor, well that one is a no-brainer. Firstly, he’s only been dead a couple of years, and doesn’t have any landmark, festival, or any other iconography other than his face to identify him… so, he’s out, definitely. Which is fine by me, as although he was a beloved character I understand that in real life he was a gigantic horse’s rear.
We’re going to try to talk the client out of this concept anyway. There are just too many pitfalls to it, and besides the script/concept isn’t very strong, anyway.
T2
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Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com
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“We’re going to try to talk the client out of this concept anyway. There are just too many pitfalls to it, and besides the script/concept isn’t very strong, anyway.”
There’s always a better option waiting to be written. As you say, the concept doesn’t sound all that strong or original to start with. Maybe you can get away for less, by using quotes of these celebs, only either done as type-only, or recited by other people, or supered over some iconic imagery that’s public domain.
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