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?

Pope Francis dolls?

Here’s a Right of Publicity fact pattern to kick around:  can a company make Pope Francis dolls without a license from the Pope?

I don’t know if the recently announced Pope Francis dolls from Bleacher Creatures are licensed or not, so I want to be clear on that point and allow for the possibility that they are.  Bleacher Creatures primarily makes 10″ dolls of famous athletes, and they wouldn’t be doing that without permission.

In the link below, I find it interesting that the company is said to be “crossing their T’s and dotting their I’s” but the extent of that due diligence appears to be simply that they “reached out to the Vatican” and “would love to officially partner with them.”  Taken at face value, that strongly indicates that they do not have any form of permission to make the dolls.

Of course, “reaching out” coupled with a statement of desire to “officially partner” is not all that is needed to proceed with commercial products of a famous person.  Perhaps the play here is that the Pope isn’t likely to file a claim over it, but last time I checked, “likelihood of getting away with it” was not the legal standard for Right of Publicity infringement.

http://money.cnn.com/2015/02/16/smallbusiness/pope-francis-plush-doll/index.html

MTV’s Johnny Bananas sues over Entourage’s Johnny Bananas

John Devenanzio, known as “Johnny Bananas” from MTV’s Real World Key West and other MTV reality shows, has filed a lawsuit in response to the Johnny Bananas character in HBO’s Entourage.  The lawsuit was filed in New York and names HBO, Time Warner, and the creator of Entourage as Defendants.  In addition to monetary damages, the lawsuit seeks to stop distribution of Entourage episodes which include the Johnny Bananas character played by Kevin Dillon. 

Devenanzio’s lawyer also represented Lindsay Lohan in Lohan’s lawsuit against E-Trade for its depiction of the milk-aholic baby referred to simply as “Lindsay.”  That claim has reportedly settled.  Here’s a link to my entry on that claim:   http://rightofpublicity.com/lindsay-lohan-and-the-etrade-milkaholic-baby

The Hollywood Reporter write up on Devenanzio’s claim is well-written and thorough, though it does seem to reveal a certain disdain for Devenanzio’s claim.  The claim is characterized as “remarkably vague,” and states that “it appears Devenanzio is not asserting any allegation of trademark infringement” but instead is claiming violation of “his publicity and privacy rights.”   I’m not sure why that in itself is inherently vague. 

I haven’t reviewed Devenanzio’s filings, or those of the Lindsay Lohan claim against E-Trade; however, alleging a trademark violation, or having Federally registered trademarks protecting a person’s namesake or some distinctive aspect of his or her identity, is not a prerequisite to filing a lawsuit when the claimant’s Right of Publicity has been commercially utilized.  This point is a hallmark of Right of Publicity analysis.  The Right of Publicity may share certain characteristics with trademark law, but they are not interchangeable.  Each protects different interests, have their own elements and standards, and have distinct policy rationales.

The write up further states that success in the lawsuit “may depend on whether he can find anything in discovery that shows [Defendants] had  Devenanzio in mind when they created the Johnny Bananas character.”   This is not the standard Devenansio has to meet, though.  For one thing, it may be impossible to find a “smoking gun” that demonstrates a clear link, or an intentional act, of naming the Entourage character after Devenanzio.  If such evidence can be found, so much  the better for Devenanzio’s claim and prospects for punitive damages. 

But a successful Right of Publicity does not require proof of intent to infringe.  What matters most is whether the claimant is identifiable from the portrayal.  Identifiability will be measured by viewers of the show and their determination or impressions, not those of the show’s creators or producers. 

It seems to me that Johnny Bananas is a fairly distinctive nickname.  One does not have to be identifiable on the level of a Michael Jordan, or George Clooney, or President Obama, either.  Instead, a viewer, or a potential jury as it were, can be presented information, context and imagery of Devenanzio’s Johnny Bananas and that of the Johnny Bananas in Entourage.  This may take the form of “aided identification” (as opposed to “unaided identification”), but this does not invalidate a potential Right of Publicity claim.  There might just be something to Devenanzio’s claim.

Here is a link to the Hollywood Reporter article:   http://www.hollywoodreporter.com/thr-esq/mtv-star-sues-hbo-johnny-244446