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?
I would hope that both of the stories breaking yesterday, one involving George Carlin’s estate and the other involving Taylor Swift, would find universal support in favor of the Right of Publicity.
Taylor Swift: Taylor Swift and AI images
A recently introduced bipartisan Senate bill aims to hold AI and deepfake creators liable for unauthorized use of a person’s likeness. It sounds like a good idea, though Right of Publicity statutes already accomplish this objective. Perhaps a bill specifically addressing these particularly-concerning, technology-based uses could serve a purpose, but it should be considered, and drafted, with existing Right of Publicity statutes in mind. Here’s a link to one article of many covering the bill: NO FAKES bill
Not that it needs to be demonstrated, but recent AI and deep-fake developments further demonstrate the need for meaningful Right of Publicity recognition.
AI-generated a “new” song presented as Drake and the Weeknd. Read more on this link: AI Drake the Weeknd song
Deep-fake technology is taking centerstage in a recently filed suit in California. Read more on this link: Kyland Young et. al. v. Neocortext Inc.
In what may be a contender in the “most clever” licensing event of recent times, the running back for Texas, Bijan Robinson, is involved in a mustard line launch entitled “Bijon Mustardson.” It is, quite obviously, a dijon mustard. Also, quite obviously, this “NIL deal” is more properly understood as a Right of Publicity matter, though admittedly involving a collegiate athlete. We’ll let semantics have a rest and simply enjoy when the licensing deals practically write themselves. Here’s a link to more info:
Bijan Mustardson” rel=”noopener” target=”_blank”>Bijan
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.
An image that can be found in an image provider’s database marked “public domain” does not make it so. Obviously, the recent B.J. Novak odyssey illustrates how far things can go sometimes, but that does not mean his image actually was public domain, that ad agencies and companies were free to use his image on products or in advertising, or that he was without recourse (though he has indicated not being inclined to pursue the end-users). The term “public domain” (like many aspects of intellectual property) gets misused often. The headline of a recent article “How your photo could end up in the public domain – and used in ads around the world” takes a substantial leap and demonstrates the point, though the substance of the article may be helpful.
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