I am just going to say it. In case you had any doubt at all, it is not okay to use a celebrity’s image to endorse your product or business without permission. Also, it is not okay to use someone else’s copyrighted work (in this post a photo) in your advertisement for your business. Sigh! Okay; we got that out of the way. 🙂
A friend who lives in Florida recently sent me the following advertisement to get my thoughts on it. My friend is not the business in question, but was quite shocked about the use. As you can imagine (no pun intended), I was quite shocked too!
Here is the ad with the identifying information of the business blurred out. The identifying information of the business appeared across John Lennon’s chest on his t-shirt and in the bottom left-hand corner.
Clearly, that is John Lennon. Do you recognize the photo? I was thrown when I first saw it because the logo/trademark on John Lennon’s shirt was that of the Florida business. A quick search revealed that the photo is one I have seen nearly my whole life, is quite famous and one that is almost iconic to what society thinks of when they think of John Lennon. Here is the original photo by the world-renowned rock ‘n roll photographer Bob Gruen.
There is no mistaking that the business used Gruen’s copyrighted photograph. The business’s advertisement was slightly altered. It has been flipped so that Lennon is leaning to the left instead of to the right as in Gruen’s original copyrighted work. The “New York City” on Lennon’s t-shirt was replaced with the Florida business’s logo/trademark. However, all the other elements to the photo remain the same. Lennon’s belt buckle matches, the positioning of Lennon’s hands are the same and both show him wearing a distinct medallion on a chain around his neck. I think the business would have a hard time claiming they did not use Gruen’s photo for their print campaign.
There are two distinct legal issues at play. The first and most obvious is the copyright that Bob Gruen has in the photo of John Lennon. A quick search of Bob Gruen’s website reveals that Bob Gruen is the copyright holder of the photo. As the copyright holder, Gruen has the exclusive right to display, reproduce, adapt, and publish the copyrighted work. He can also license others to use the photo. Finally, I think it would be hard for the business in question to succesfully argue fair use in this case. For more on Fair Use and how it applies, check out my earlier post.
The other legal concept at play is the right of publicity to use John Lennon’s image. Right of publicity protects a person from his or her image being used for commercial gain without permission and/or compensation. Unlike Copyright law which is a federal law, right of publicity is state law and varies from one state to the next. Right of publicity is also linked with the concepts of federal trademark law that protects consumers from deception by associating a well-known person with a product or business. Think endorsement deals. Celebrities, alive and deceased, are heavily compensated for association with a product or brand. Some states recognize this right even after the person who is depicted has deceased.
When my friend sent me the advertisement my thoughts immediately went to the case of Woody Allen vs. American Apparel. This recent case dealing with right of publicity demonstrated the amount one could get for a claim falling under right of publicity. In 2008, director Woody Allen filed a lawsuit against American Apparel for the use of his image from the film Annie Hall on a billboard in New York. Woody decided to settle the case out of court for the price of $5 million. You can read more about the case from the New York Times article, For $5 Million, Woody Allen Agrees to Drop Lawsuit.
I certainly do not want to suggest that the business in question did anything wrong. Perhaps Mr. Gruen licensed out the photo to the business. Perhaps the business also obtained permission from the estate of John Lennon. Perhaps neither Gruen or Lennon’s estate requested, as part of the license agreement, credit of any sort to be given within the advertisement. Perhaps.
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