VOL. 130 | NO. 210 | Wednesday, October 28, 2015
Celebrity Selfies And Businesses’ Legal Obligations
By Graham Matherne
Suppose your company sponsors a newsworthy charitable event at your offices and local celebrities attend. After the event, you have numerous selfies of yourself and your employees with those celebrities. You want to put some of these photographs on your company’s website, but you don’t want to go to the trouble of getting the celebrities’ permission before you upload them.
Of course, it’s always best practice to get permission before you use someone else’s photograph or image. If you don’t have that permission, the question is: Can you post those selfies without violating the Tennessee law that prohibits misuse of another’s name and likeness for commercial purposes? How’s this for a lawyer’s answer:
The Tennessee Personal Rights Protection Act (TPRPA) provides that “every individual has a property right – the right of publicity – in the use of that person’s name, photograph, or likeness in any medium in any manner.”
However, the TPRPA applies only when the unauthorized use is in a commercial, advertising, sponsorship or endorsement context. It does not apply to the misuse of a name or likeness that could involve the rights of privacy, copyright or trademark issues.
It is permissible under the TPRPA to use another’s name or likeness without that person’s permission if the use is in connection with a newsworthy, public affairs or sports-related event. But Tennessee courts have suggested that if you use the celebrity’s name or likeness in the pretext of a permitted use, but, in actuality, the use is merely an “advertisement in disguise,” then you may have violated the law.
If posting the selfie with the celebrity appears in the news section of your company’s website or is clearly captioned as being related to the celebrity’s attendance at your newsworthy charity event, there should not be any violation of the TPRPA.
If, however, the selfie of the celebrity appears in the testimonials section of your website, or if it is accompanied by a caption which suggests that the celebrity is endorsing your company and-or its services or products, then there could be a violation of the law.
These seemingly clear areas of “news” versus “endorsements” become less clear, however, when the use of a celebrity’s name and likeness constitutes an “advertisement in disguise.” The “advertisement in disguise” situation is one in which the unauthorized use of the celebrity’s name or likeness at first blush appears in a permitted context, but is portrayed in a fashion that strongly suggests that the use of the celebrity’s name or likeness was intended to be an advertisement or to convey endorsement or sponsorship.
To best avoid this situation, do not overuse a celebrity’s name or likeness in the selfies posted on your company website. Make sure that there are captions or text that describe the celebrity’s presence related to the charity event and that his or her attendance is not an endorsement of your company’s products or services. Better yet, always get permission to use someone’s name or likeness.
And if you’re still not sure, consult an attorney. Hopefully, after describing the situation, your attorney’s answer will not start out with the words: It depends.
Graham Matherne is a partner with Wyatt, Tarrant & Combs LLP and a member of the law firm’s Litigation & Dispute Resolution Service Team.