Out of bounds? Playing ball with celebrity right of publicity and fair use

Play one-on-one with Michael Jordan and you're going to pay, as Jewel-Osco found out the hard way

A spate of recent lawsuits has left companies questioning the difference between commercial and non-commercial speech. Several highlight the dangers of stepping out of legal boundaries, wittingly or no, when engaged in commercializing businesses using advertising and social media. Two recent cases show how difficult it is to determine what constitutes commercial use (thus potentially infringing use) and non-commercial use (and thus fair use) of a celebrity’s identity.

Individuals are generally considered to consist of two types of personality rights. One is the right of publicity, which allows the individual to keep her or his image and likeness from being commercially exploited without permission or contractual compensation. In this regard, the right to publicity is similar to the use of a trademark. The other is the right to privacy — that is, the right to be left alone and not have one's personality represented publicly without permission.

While Jordan continues to dribble up and down the courts on Jewel, actress Katherine Heigl is hoping to score against New York-based Duane Reade pharmacy.

Heigl was photographed in March near a Duane Reade store in New York by local paparazzi. Duane Reade's marketing department secured the photograph, and then posted it on Twitter and its Facebook account with captions advertising the store. The tweet in question read, “Love a quick #DuaneReade run? Even @KatieHeigl can't resist shopping #NYC's favorite drugstore.”

Contributing Author

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Scott Slavick

Scott Slavick is a shareholder at Brinks Gilson & Lione, where his practice focuses primarily on trademark prosecution and trademark litigation. Scott maintains all aspects...

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