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?
SCOTUS Prince ruling against fair use in Goldsmith Andy Warhol case may connect to upcoming AI issues
As has been well-documented, the United States Supreme Court recently ruled in favor of photographer Lynn Goldsmith in finding that Andy Warhol’s Prince series was not a transformative use of Goldsmith’s photograph under fair use analysis. As it pertains more directly to the Right of Publicity, it is interesting to note that in Comedy III, Warhol’s Marilyn was the cited example of a transformative work. Be that as it may, in light of fast-developing discussions pertaining to Artificial Intelligence (AI), the SCOTUS Warhol ruling may provide support for the argument that AI creative output is a derivative work of the original. We’ll see.
US Supreme Court to consider Andy Warhol’s Prince Series in relation to copyright fair use and transformative test
You can find information concerning the dispute between the Andy Warhol Foundation (AWF) and photographer Lynn Goldsmith elsewhere, such as the factual underpinnings, lower court rulings on the case to date, and the arguments on either side easily enough in other place. Given the recent acceptance of a writ of certiorari by the United States Supreme Court (SCOTUS), I will simply note a few details that could be interesting to watch from a Right of Publicity perspective.
First, it is interesting to consider that in Comedy III, the court specifically cited Warhol’s Marilyn as the example of a transformative work, in crafting and applying its transformative use test to the Right of Publicity. Often lost in discussion of the case and reference thereto, the rightsowners of the Three Stooges (Comedy III) won the case on Right of Publicity grounds in relation to the commercial activities that had occurred in relation to a charcoal sketch of the Three Stooges by the defendant. The original work of art itself was not really the issue, but rather, the activities connected to that work were found to constitute a Right of Publicity violation. The Judge carefully articulated a test for deciding such situations, thus advancing the transformative use test for Right of Publicity purposes.
In the Warhol dispute concerning Lynn Goldsmith’s Prince photograph, the issue is of a copyright nature. Still, it is interesting that in a notable prior case (Comedy III), Warhol’s Marilyn was cited as the example of a transformative use. Now, in the AWF / Goldsmith matter the very question of whether Warhol’s rendering of Prince is transformative takes center stage.
Second, in teaching Comedy III this semester after news of SCOTUS accepting AWF’s petition, a question was raised whether Warhol perhaps used a reference photo in creating his Marilyn work. The inquiry is intriguing, though perhaps only for academic reasons. Without knowing the specifics, it seems plausible that if Warhol used a reference work for creation of his Prince work, it is possible he did the same for creation of his Marilyn work. The implications, if so, can be considered elsewhere.
Third, it is important to note that the AWF Goldsmith matter to be decided by SCOTUS, with a decision expected sometime in 2023, ought to be confined to a copyright decision. Any Right of Publicity involved would be that of Prince, and it is assumed that the rightsowners of Prince’s publicity rights are not part of the matter. SCOTUS is good at keeping the issues it is considering confined to only that which is in front of the Court at that time. In other words, no matter what SCOTUS decides in the AWF Goldsmith matter, it is expected to be a copyright decision only.
Last, and despite the observation in the preceding paragraph, certain Right of Publicity tests and analytical constructs often borrow from the copyright realm. If the transformative use test happens to be recast or adjusted by SCOTUS, it would not be surprising to see future holdings considering the Right of Publicity in relation to a Comedy III-type transformative use test take into account what the Supreme Court finds in the Warhol Goldsmith matter concerning Warhol’s Prince series.
Andy Warhol’s Prince series not transformative; Andy Warhol’s Blue Marilyn transformative?
Just a quick note based on the Second Circuit’s recent ruling in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, where it determined that Warhol’s Prince series was not transformative and therefore was subject to copyright provisions in relation to the reference photograph Warhol used. The court went through a fair use analysis, and the case was primarily concerning copyright, but it is interesting to contrast this decision with the Comedy III case, which was primarily Right of Publicity-related. In Comedy III, the Three Stooges artwork was held to not be sufficiently transformative, and the court used Warhol’s Blue Marilyn as the example of a work that would, in contrast, and in the court’s estimation, be sufficiently transformative. I’ll let those motivated to seek more run their own searches rather than post links here, as there is no lack of content, analysis and discussion being offered on this recent ruling. I have not, as yet, seen reference to the contrast with the Comedy III case, so I thought it may be useful to note it here.
Larry Bird mural presents interesting scenario for IP analysis
Not that it would happen, but I can imagine providing the scenario in the following link as a law school exam: Larry Bird mural
https://www.msn.com/en-us/sports/nba/larry-bird-wants-tattoos-removed-from-street-artists-mural-of-him/ar-AAG5jpx?ocid=spartanntp
It does not appear headed towards legal action, but hypothetically, how could this go? On the copyright front, is it a fair use? A derivative work? Does adding tattoos that Bird obviously does not have change the copyright analysis?
On the Right of Publicity front, or perhaps on the privacy front, what issues exist? Is it a commercial use? Is it protected by statute? Are there issues involved here that sway the analysis in one direction or the other?
Super Bowl LI, Tina Fey and John Malkovich ads, and the Right of Publicity
When it comes to the Super Bowl, even the advertisements are watched with great anticipation and Super Bowl LI was no exception. When your company is involved in licensing some of the advertisements in question, as Luminary Group was in the “Super Bowl Babies” spot, it tends to make one watch even more closely. As a Right of Publicity specialist, I was especially intrigued by not one but two Super Bowl LI advertisements with strong Right of Publicity overtones.
The first spot with Right of Publicity implications was the talking yearbook Honda advertisement featuring Tina Fey, Steve Carell, Robert Redford, Amy Adams, Earvin “Magic” Johnson, Jimmy Kimmel, Missy Elliott, Viola Davis, and Stan Lee. By showing an entire page of the yearbook photos of the not-yet-famous celebrities next to their classmates, approximately 60 other people appearing next to the talking yearbook images were identifiable. I have no inside information about the making of the advertisement, so I will assume the spot was carefully vetted. Maybe those other people were tracked down and permission was secured. Maybe they used stock photography or models with hypothetical names and simply paid a minimal fee to recreate the yearbook pages instead of using the authentic pages. In the Steve Carell segment, the person next to Carell even gets a speaking spot to which Carrell responds “that was a rhetorical question, Darryl!” If nothing else, the Honda talking yearbook ad presents an interesting scenario for Right of Publicity analysis.
Here’s a link to the Honda advertisement: Honda talking yearbook ad featuring Tina Fey, Steve Carell, Robert Redford, Magic Johnson, Missy Elliott, Viola Davis, Jimmy Kimmel, Stan Lee and Amy Adams
The second spot with Right of Publicity implications was the John Malkovich domain name advertisement for Squarespace. In the advertisement, Malkovich is talking on his smartphone to a person who owns the domain name JohnMalkovich.com. Malkovich says he needs the domain name because he is starting a men’s fashion line, but the person Malkovich is talking to is also named “John Malkovich.” This prompts John Malkovich to say “yeah, you think when people contact JohnMalkovich.com they are actually looking for you? Or maybe, maybe they’re looking for ME!” Domain name analysis pertaining to famous individuals often depends on the nature of the use being made of the domain name. If a person shares a name with a famous person of the same moniker, but is simply using that domain name in relation to the non-famous owner’s career, interests or life, for example, there may not be much the famous John Malkovich can do about it. On the other hand, as so often is the case, if the content on the domain name is being used in a way that threads in the famous John Malkovich, then there could be an actionable domain name dispute. The message of the John Malkovich ad is to register the domain name you want before someone else does. That’s good advice, though it isn’t always the final word in instances where cybersquatting is taking place.
Here’s a link to the Squarespace advertisement: Squarespace JohnMalkovich domain name ad
Deflategate, the NFL suspension, Tom Brady and Free Brady! t-shirts
Not long after the NFL issued Tom Brady his deflategate suspension, Barstool Sports issued a “Free Brady!” t-shirt. The design has a strong resemblance to Shephard Fairey’s “Hope” rendering that was used in President Obama’s 2008 campaign. Below is a link analyzing the question of whether the Free Brady work is a fair use or copyright infringement, but I have to note that Tom Brady’s Right of Publicity is also implicated by the t-shirt which is not mentioned in the below analysis.
#deflategate #FreeBrady #NFL #Bradysuspension #TomBrady #RightofPublicity #ShephardFairey #Hope
Hangover II, Mike Tyson, and copyright claims in a tattoo design
Interesting case of the tattoo artist asserting a copyright claim for the appearance of his infamous Mike Tyson-face tattoo appearing in Hangover II. It raises a slew of interesting intellectual property questions that I’m not going to research or try to answer definitively here. But in short, I see a number of problems with the tattoo artist’s position.
I understand that no objection was made to the appearance of the tattoo in the first Hangover movie. Perhaps that is because only Mike Tyson appeared in the first Hangover movie, whereas in Hangover II, in addition to Mike Tyson appearing again, actor Ed Helms’ character gets a similar, or perhaps identical tattoo on his face.
Maybe the argument from a copyright claimant in these circumstances is that the inclusion of his tattoo constitutes an unauthorized display in violation of his exclusive section 106 rights under the Copyright code. Similarly, perhaps the tattoo on Ed Helms’ character constitutes an unauthorized derivative work, or an unauthorized copying.
If the activities complained of in Hangover II are copyright violations, then the appearance of the tattoo in the first Hangover movie must also have been a violation. The tattoo artist could hardly object to Mike Tyson appearing in a film, and by virtue of the tattoo appearing on Tyson’s face, well, the tattoo is going to appear as well. At this point, there could be a viable estoppel defense to the assertion of the claim now, years after the first Hangover movie.
The notion of intellectual property in tattoo designs raises some novel questions. It is certainly possible to construct a scenario where a copyright, or trademark interests, can be manifest in a tattoo. If a person gets a Harley-Davidson logo tattoo, it is of a trademarked logo. If a person gets the lyrics to a song as a tattoo, it certainly could be of a copyrighted work. But what of a relatively simple configuration of angular lines, like the Tyson tattoo? Is that even an original work of authorship? Maybe. But who owns the copyright in the tattoo design? Might it be considered a work made for hire, vesting the rights in the recipient of the tattoo on whose skin it appears?
Or, perhaps there is an implied license allowing the recipient of the tattoo to display the tattoo publicly. Certainly, when taking the conspicuous step of tattooing a person’s face, the tattoo artist cannot simultaneously expect to enforce the exclusive rights of a copyright owner concerning the right to display, reproduce or even perform the work. Can the tattoo artist/copyright owner then only selectively enforce his copyright? Doesn’t this lead to the scenario that anyone who takes Mike Tyson’s picture is committing copyright infringement by making an unauthorized copy of the work, or perhaps even a derivative work? Displaying the image, then, as in the news, leads to the same result.
Since the tattoo is part of Mike Tyson’s skin and face, then when Tyson is acting and his face is engaging in expressions, delivery of dialogue, and such, can it be argued that the tattoo is engaging in a “performance?” Remote, but then so is this whole topic. I also credit another legal commentator for pointing out that human organs generally are not subject to intellectual property ownership. The skin is an organ. While the tattoo and ink are not organs, once permanently embedded in the skin, they would seem to be part of that organ. I’ll let you take a shot at piecing an argument together based on that interesting line of thought.
To the extent that the tattoo artist could construct a copyright claim in response to at least certain activities, it seems clear to me that this particular form of intellectual property would also be subject to considerable fair use exceptions. Some of the above points exemplify why.
Just to further complicate things, I’ll mention that the tattoo is so closely and unequivocally associated with Mike Tyson that the tattoo might actually raise potential Right of Publicity considerations. Those issues don’t exist in the Hangover matter because Tyson obviously consented to appear in the film. But hypothetically, I can envision a scenario where that tattoo design on a person’s face, let’s say appearing in an advertisement of some kind, could constitute a violation of Mike Tyson’s Right of Publicity. In this regard, the claim might be even stronger than the copyright claim concerning Hangover II.
Here’s a link to more on the Hangover II tattoo copyright dispute:
http://today.msnbc.msn.com/id/43138242