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
I had an engaging discussion with Ted Johnson of Variety Magazine regarding virtual celebrities earlier this week, and the opportunities and pitfalls presented by the technology that allows famous persons to be flawlessly recreated. The opportunities and pitfalls are, in short, considerable.
Ted Johnson’s article appears in the latest edition of Variety as well as online. You can check it out at this link: http://www.variety.com/article/VR1118055844
Benetton has recently issued an advertising campaign featuring images of President Obama digitally altered to appear as though he is kissing Venezuelan leader Hugo Chavez, and in another spot, Chinese President Hu Jintao.
Benetton euphemistically calls it “an invitation” to “combat the culture of hatred.” (Dear Benetton: whose hatred, exactly?) I call it an advertisement.
While I don’t begrudge message-based advertising or calling attention to things like charitable fundraising or humanitarian efforts, I find campaigns like this to be little more than a transparent publicity stunt designed only to stir up controversy and get extra publicity for Benetton. I suppose I am obliging them by writing about it, but perhaps raising the specter of liability for the advertisement offsets that transgression.
All of this reminds me of a post I wrote about PETA’s advertising antics: http://rightofpublicity.com/peta-launches-new-ad-featuring-michelle-obama-without-first-ladys-permission
The White House issued the following statement in response to Benetton’s ad: “The White House has a longstanding policy disapproving of the use of the president’s name and likeness for commercial purposes.” Sounds like someone at the White House may have a functional awareness of the Right of Publicity.
Here’s a link to more details on the advertising campaign: http://digitaljournal.com/article/314625
Benetton’s advertisement would make a good Right of Publicity exam question.
What do you think?