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?
Savannah Law Review’s “The Walking Dead” Colloquium
I am honored to be presenting at Savannah Law Review’s upcoming colloquium, “The Walking Dead” in Savannah, Georgia. Topics will include earnings of deceased celebrities, Michael Jordan’s $8.9 Million damages award, recent legislative activity and Right of Publicity trends to watch. A corresponding law review article will be published in the upcoming Savannah Law Review journal.
Here is a link to more information on the colloquium:
http://www.savannahlawschool.org/savannah-law-school-hosts-the-walking-dead-colloquium/
Hollywood Reporter’s “Hollywood Hologram Wars” quotes Faber of RightOfPublicity.com / Luminary Group
Nice to be quoted in Eriq Gardner’s new piece in The Hollywood Reporter entitled “Hollywood Hologram Wars: Vicious Legal Feud Behind Virtual Mariah, Marilyn and Mick.” The article does a great job examining the business potential and burgeoning adoption of so-called hologram technology as well as corresponding growing pains and legal issues, particularly between those developing the technology itself.
In answer to Eriq’s question of “what’s the licensing and business potential for this technology?” I also said that it depends on:
a) what is being counted (fees to the estate, to the owners of the technology itself?); and
b) gross or net; and
c) how the market responds.
If the market responds well to an Elvis live show on a world tour, those gross earnings alone could be well on the way to the billion mark. And if it follows with a Johnny Cash or Michael Jackson tour, yes, it will reach billion dollar potential. And, will people be interested in seeing Michael Jackson “live” once, or over and over?
Here’s the link to Eriq Gardner’s The Hollywood Reporter article:
http://www.hollywoodreporter.com/thr-esq/hollywood-hologram-wars-vicious-legal-798401