Cetaphil Super Bowl LVIII commercial fair use of Taylor Swift?

Super Bowl advertising is fertile ground for Right of Publicity licensing. My company more often than not will have a campaign using one of my clients. Inevitably, then, there could also be instances of advertising which wanders into the realm of a Right of Publicity infringement.

Without saying I believe it is or is not an infringement, or whether it was authorized or not, there is no denying who the Cetaphil advertisement of a father and daughter bonding over friendship bracelets and football jerseys was connecting to the surge of attention brought by Taylor Swift dating Kansas City Chiefs tight end Travis Kelce in the 2023 season. My Right of Publicity class will use this spot for discussion of Right of Publicity analysis.

In the Cetaphil advertising spot, no reference to the Super Bowl or the Kansas City Chiefs is made directly; however, several football jerseys are depicted, one in a red-based color, another in an away-uniform white-based color. They are otherwise unmarked jerseys, but at least arguably are capable of being viewed as Kansas City Chiefs jerseys. The timing of the spot occurs during the “big game,” and perhaps the viewer is expected to arrive with a built-in familiarity of one of the teams in the game and to Taylor Swift and her circumstantial but heavily-publicized connection to the Kansas City Chiefs.

So with respect to Taylor Swift and the Right of Publicity, would it be actionable? Throughout the spot, the father and daughter seem not to be connected as each looks at their phones or have seemingly disparate interests. The numbers on the jerseys in the spot are 89 and 13, both of which need no explanation to Swifties or the Taylor Swift fanbase, as those numbers are immediately recognizable as connected to Swift (arguably even more so when used together). Numerous close-ups of friendship bracelets culminate in both the father and daughter wearing both friendship bracelets, and both wearing football jerseys in the Kansas City Chiefs colors, numbered 89 and 13. The father-daughter disconnect is remedied as the father wears friendship bracelets like his daughter, the daughter wears a jersey like her father, and they both sit down in front of the television presumably to watch the “game.”

Do these references require a built-in awareness of the storylines dominating the 2023 season and the 2024 Super Bowl? To be clear, no NFL or Kansas City Chiefs trademarks are directly depicted, nor is Taylor Swift named or directly portrayed. Do these details render the spot clear of violations? Again, I am not giving an assessment, just raising the question, and from one of the following links, I am not the first to ask the question.

Here is one link to the spot, which posting is captioned “Taylor Swift Cetaphil commercial:” Cetaphil 2024 Super Bowl commercial

Here is a link to one write up that references the dynamics in play, and also considers whether fair use would provide safe harbor. Cetaphil’s Marketing Tactics balance Taylor Swift Imagery and IP Rights

The standard for infringement is identifiability, perhaps qualified by the association being unequivocal (“unequivocal identifiability”). It is probably safe to say that Taylor Swift, and only Taylor Swift, is unequivocally identifiable from the advertisement. Are the interests of fair use served by an advertisement like this being deemed permissible? To be clear, it has not been “deemed permissible” nor to my knowledge has any action been taken against it. It may remain theoretical, but context matters in Right of Publicity analysis. Given the attention on the Travis Kelce-Taylor Swift relationship throughout the 2023 NFL season, culminating in the Kansas City Chiefs reaching Super Bowl LVIII, and Taylor Swift being shown several times in any game she attended, then the context may dictate that further identification of Taylor Swift, the Kansas City Chiefs, or the Super Bowl were unnecessary because the context of the use removed any uncertainty. Should it have been licensed? Should it be fair use?

A few thoughts on Forbes’ annual top-earning dead celebrities list

Departing from the usual Halloween release date, Forbes issued its annual top-earning deceased celebrities list on Friday, November 13th in 2020. A few takeaways, in no particular order:

1. Unsurprisingly, given the worldwide pandemic, almost all the reported numbers are down. Some may have more immunity than others, and those that went up, like Dr. Seuss were bolstered by television, movie and media deals. Some of that may be one-time bursts.
2. Elvis Presley was closing in on a 50% decline. Graceland, as a tourist destination, no doubt accounts for much of that given closures in 2020.
3. Prince is down yet again another year further from his death, as has been the trend. The summary on Prince mentions only music sales.
4. Those with the misfortune of making 2019’s list due to early departure, XXXTentacion and Nipsey Hussle, are gone.
5. Those with the misfortune of making 2020’s list due to early departure include Kobe Bryant and Juice WRLD. It will be interesting to see if Kobe Bryant is a one-time, one-year entrant or will make next year’s list as well.
6. Not-much-of-a-prediction: Eddie Van Halen will be on next 2021’s list. Though he passed away over a month prior to the release of the 2020 list, that is neither enough time to account increased sales, nor enough time to process his passing into a list that was no doubt already well underway in October.
7. The article includes a statement about its methodology, which includes sources I use when appropriate in valuations.

Last, a word about the often used term “delebrity” in relation to deceased celebrities. I get it, though it’s never really hit me as particularly clever or useful as a term. More importantly, no one I know who actually works with the heirs, family, and estates of notable deceased icons uses this term. It’s hard to take someone seriously who uses this term in their scholarship, publications, or writings. But keep using it, those who do, because it provides a revealing tell.

Here is a link to Forbes’ 2020 list: https://www.forbes.com/sites/maddieberg/2020/11/13/the-highest-paid-dead-celebrities-of-2020/?sh=37a974e03b4b&utm_source=Licensing+International+Database&utm_campaign=b3b89e5adb-EMAIL_CAMPAIGN_2019_12_18_01_57_COPY_01&utm_medium=email&utm_term=0_ec0e484a60-b3b89e5adb-397655773&mc_cid=b3b89e5adb&mc_eid=a31363c945