Among the major liabilities pertaining the Public Relations industry, we find that privacy laws have been continuously arising lawsuits and affecting the industry directly. Privacy laws vary from state to state and are encompassed in a grey area where the boundary between First Amendment protected speech and commercial speech is yet to be delineated. According to Don Pember (2008), author of Mass Media Law, there are four areas of privacy law: appropriation of name or likeness for commercial purposes, intrusion, publication of private information and publication of material that puts an individual in false light. For this particular discussion, I’ll focus on the first category, appropriation of someone’s name or likeness for commercial gain without permission.
It’s important to know that the appropriation tort is divided into two categories: the right to privacy and the right of publicity. The major difference between each other is that the “right to privacy protects an individual from the emotional damage that can occur when a name or likeness is used for a commercial or trade purpose” (Pember, 2008, p. 281), while the right of publicity intends to “remunerate individuals for the economic harm suffered when their name, picture, image, likeness, voice, etc. for commercial exploitation without compensation” (Pember, 2008, p. 281). Although it’s more common to see celebrities take legal action against companies claiming their right of publicity, average individuals can use these legal causes of action as well.
Gordon Firemark, lawyer and blogger for Entertainment Law Updates, does a great job using his podcasts explaining notorious cases regarding privacy laws, specifically Right of Publicity. As said before, an average person can file a suit regarding their Right of Publicity. This is the case of the lawsuit filed by three Facebook users against Facebook for using their name and likeness in Facebook’s sponsored stories. The claim that their names were being used to promote a brand without their consent made Facebook settle the suit by granting the plaintiffs ten million dollars. This case is a great reminder for all of us in the communications industry that we need to obtain consent from individuals before using their names and/or likeness in any kind of marketing tactic. When evaluating this case, Firemark points out a very important aspect: the need to revise contracts and incorporate waivers into them to reduce the company’s liability. Eventually Facebook changed the terms and agreements regarding sponsor stories, but they had to engage in this legal battle that could have been prevented with a clear privacy policy in their website.
In another podcast, Firemark and his college Tamera Bennet address the Right of Publicity topic by taking a look at a celebrity related case: Chuck Yeager vs. Cingular. This case was extremely interesting for me because it relates directly to the Public Relations industry. The well-known retired U.S. Army test-pilot Chuck Yeager, who is famous for becoming the first person to break the sound barrier, filed a suit again Cingular Wireless for the use of his name without consent in a press release. To announce the release of a new cell phone service, Cingular made an analogy to Yeager’s feat in breaking the sound barrier. Yeager claimed that his name and likeness was used in a commercial setting without his consent to create positive association between him and the brand. The writer of the press release later agreed with this last statement. For this and the mere fact that the court categorized press releases as commercial speech, it was inferred that Cingular had an economic motivation underlying the press release distribution. The court ruling favored Yeager, as it has on several other cases where Yeager has tried to monopolize the use of this historic achievement in any kind of medium without his consent.
This case is key for Public Relations professionals because, as Firemark states, it’s eye opening and it reinstates the importance of being careful with the language used in all forms of communication. Even when used in analogies, like the Yeager case, using proper names without consent can pose a great liability for Public Relations professionals. There are even certain jurisdictions that protect the Right of Publicity of deceased celebrities. In yet another podcast, Firemark presents several cases, such as the Marilyn Monroe one, that deal with this ongoing battle regarding Post-Mortem Right of Publicity.
Firemark’s comments and this further analysis comes to show, that we have to be extremely careful with the names and language we use because battles over the controversial privacy laws seem to be far from over. On the contrary, it seems that more jurisdictions will take the artist’s side and will grant amendments to the Right of Publicity laws.
Pember, Don. (2008) Mass Media Law. Chapter 7, pages 277-281.
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