The rights of celebrities to control the commercial use of their images has been a hot topic in both the UK and the US for some time now. You may recall, CovBrands reported on the issue before in connection with a lawsuit by Rihanna against Topshop for selling a t-shirt bearing her image without her consent. Rihanna sued in the UK where the law surrounding image rights is very much unsettled. Although the High Court sided with Rihanna on the grounds of passing off, the court did not introduce a “right of publicity” to English law.
Contrast that to the United States where many US states have “right of publicity” laws that allow celebrities to control the commercial use of their names, images, and likenesses and sue when their image is used without consent, licensing or compensation. A number of US cases brought by athletes in recent years and months may further shape the law in this realm, particularly where it is not clear that a person’s “likeness” has been misappropriated. Michael Jordan is embroiled in contentious suits against two Chicago-area grocery stores, alleging they ran ads in the 2009 edition of Sports Illustrated Presents congratulating Jordan on his induction into the NBA Hall of Fame and featuring his jersey number “23” along with their own logos. And in a series of cases against Electronic Arts, Inc., the maker of video games like Madden NFL or NCAA Football and NCAA Basketball, athletes have sued Electronic Arts, Inc., alleging the company created virtual players that, while not using names, assign physical and personal attributes that the players claim identify them. Last month, ex-NFL running back and Hall of Famer Jim Brown sued in Los Angeles Superior Court. The complaint follows a 9th Circuit dismissal of a similar claim by Brown that his inclusion in Madden implied his endorsement of the product. The panel of judges disagreed, concluding that Madden video games are “expressive works” and that Brown’s likeness was “artistically relevant to the games.” The 9th Circuit simultaneously sided with college athletes allowing their suit to go forward and arguing that in EA’s NCAA video games, EA had not transformed the avatars into works of art and that the avatars are too realistic. The most high profile — In re: NCAA Student-Athlete Name & Likeness Licensing Litigation, better known as the O’Bannon case after the lead plaintiff Ed O’Bannon, a former star of the UCLA men’s basketball team — alleges that the NCAA violated antitrust laws by selling college players’ likenesses to EA to use in their NCAA college football and basketball video games. In addition to the NCAA, the suit also names EA and Collegiate Licensing Co. as defendants.
While image rights in the UK is still an open question, the basic right to control one’s own image is a more settled question in the US. These cases, however, may shape just how far a plaintiff can go to use that right. Some courts have demonstrated the limits of the right in holdings that the First Amendment trumps plaintiffs’ claims. That was essentially the holding of the Ninth Circuit when it dismissed Brown’s false endorsement claims. And in one of the Michael Jordan cases, an Illinois federal judge held the grocery store’s congratulatory message was not advertising anything and therefore was protected speech. Corporations and celebrities alike should pay close attention to these cases as they may determine the balance of an individual’s right of publicity and a corporation’s First Amendment rights.