Julia Child Foundation Wants An Injunction Against Facts
from the reality-is-infringement dept
As publicity rights become more in vogue these days, we're seeing stories of them being invoked in silly situations. We recently discussed Kim Kardashian suing Old Navy because someone looked like her. And, as if that weren't bizarre enough, this explosion in interest for publicity rights has led to the rather unsettling question of who owns the rights of dead people, like Marilyn Monroe.Now, to add another ridiculous example, reader Eric Wisti writes in about The Julia Child Foundation for Gastronomy and the Culinary Arts going up against BSH Home Appliances Corp., manufacturers of the Thermador oven line, for noting in marketing material that Child used their ovens on her popular television shows. It's an interesting case in that BSH allegedly used images of Child in their material, but this was again to demonstrate a historical fact.
The Julia Child Foundation for Gastronomy and the Culinary Arts claims BSH Home Appliances Corp. is using Child's name and image without permission. The Irvine, Calif.-based manufacturer says it is simply making a factual reference to Child's use of its appliances.The JCFGCA (Holy acronym, Batman!) sent a letter to BSH informing them that they have exclusive rights to Child's "name, image, likeness and celebrity identity" and that the marketing material and images the company put together infringed upon those rights. They are seeking an injuction and the always ambiguous unspecified monetary damages.
Child, who died in 2004, had a Thermador oven in her Cambridge kitchen. It's now displayed at the Smithsonian National Museum of American History in Washington. She also used Thermador products on the set of her popular television show, "The French Chef."
The crux of the issue from the foundation appears to be that they think BSH's material implies an endorsement by Child, despite the chef being historically reluctant to endorse products in general. I'm a bit confused as to how acknowledging Child using a product equates to an endorsement of that product. I'm perhaps even more confused as to how someone who has been dead for eight years could suddenly begin endorsing anything at all anyway. It seems to me that the kind of person who would be swayed by an edorsement by Child likely is aware of her current incapacity to endorse... well, anything. The company's filing concurs:
BSH acknowledges that it has used images of Child and references to her use of Thermador products on its website and on social media sites, but its attorneys wrote in the complaint that "those uses do not state or imply any endorsement by Ms. Child."The material, it would appear, was used simply to state a historical fact. Using Child's image may fall into more of a grey area, but I would think historical facts are not subject to publicity rights.
The company said its references to Child "reflect on the long history, significance and influence of Thermador products on American society and culture, and Ms. Child's documented and well-known use of those products."
On the other hand: won't somebody think of the dead culinary artists!?!?!
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Filed Under: facts, julia child, publicity rights, trademark
Companies: julia child foundation, thermador
Reader Comments
The First Word
“Obvious - use a disclaimer AS advertising
Seems like they could just say in their ad, "Ms. Child never agreed to endorse our products. She just used them, which is even better."HM
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IAC
All I can think of is former spies and Swedish Chefs.
Oh, sorry about that Mikey. Bork, bork, bork ...
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Well . . . I mean, she may not be directly endorsing the product, but they are using her image to sell their ovens, even if they say it's just for "factual" purposes. After all, why would one mention that Julia Child used the oven if it wasn't meant to be persuasive in some way? So there may be some level of endorsement there. Julia Child used this oven + people love Julia Child = hey, you should totes use this oven because you love Julia Child and SHE used this oven!
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And since she's not around to say yea or nay about it, why should anyone else be permitted to speak for her? Why is it even an issue?
Someone wants to get paid for doing ABSOLUTELY NOTHING. That's all this is.
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Yes - obviously there is - but that kind of endorsement is also a matter of fact that cannot legally be suppressed.
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If they're not saying that she loved it or she recommends it, just that she used it, I don't see how anyone can stop them (as long as it's true).
It's stating a fact. While it also "unoffically" endorses them, that's just a side benefit.
I say that the Julia Child Foundation (or whatever they're called), go fark themselves. Just greedy bastiches trying to get money off of someone else's hard work.
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The tackiness of this however, should mean that they would know better than to use "a fact" as a pseudo endorsement, especially from someone who, in life, would not issue any endorsements.
Let them use it, and let anyone with any sense of decency choose to not buy any of their products.
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Damn pervy oven maker Childs pornographerz!!!
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That actually is pretty meaningful to me, so I had to step back and think about it more.
The thing is, I don't think that it can be harmed post-mortem. That would suggest that somehow, after her passing, Child could have succumbed to commercial interest and sold out. It just doesn't stick.
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Was the use of this product regular and long term? I've tried/used many products that I found didn't work as advertised and so I discontinued their use. Would it be fair to say that I used these products, even if just once? Technically, yes, but saying that I used it can be misleading.
Would everyone be comfortable with their medical records being made public after they die (though this can be different because one's medical records could be used to make inferences about the medical condition of family members, ie: genetic). Is there anything you don't want the general public to know after you die?
Since this person maybe considered a public figure/celebrity do privacy rules change here?
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"Child, who died in 2004, had a Thermador oven in her Cambridge kitchen. It's now displayed at the Smithsonian National Museum of American History in Washington."
Which is maybe kinda pulic-ish, and then:
"She also used Thermador products on the set of her popular television show, 'The French Chef.'"
Which was not just on any television, but specifically on PUBLIC television. So what was the question again?
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I'd love to hear them explain how this use of Child's image monetarily damaged them. Did they have a competing oven that they were using her image to advertise and BSH's oven took some of their sales? Did someone buy a BSH oven and then call Child's foundation for support? How exactly did this cost them even a frigging penny?
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Obvious - use a disclaimer AS advertising
HM
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Can you imagine buying the former Child residence in Cambridge (MA) and then someone comes in and rips out your friggin stove for some museum?
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If you read the Foundation's complaint, they make two claims. The first is a claim under 15 U.S.C. 1125(a). By using the Julia Child name and image on their website, brochures, social media, advertising, etc., Thermador gave the false impression that Julia Child and/or her Foundation endorsed the Thermador product. The claim is that they are trading on Child's goodwill. The second claim is for copyright infringement for using copyrighted photographs without permission.
Your "but it's fact!" argument doesn't even address the legal issue, which is whether there's likelihood of confusion. In the Ninth Circuit you'd use the Sleekcraft factors. It's a fact-intensive inquiry, so without more details, I don't think you can accurately make that determination yet. I suppose the argument could be made that it's nominative fair use, but I don't think that even passes the laugh test.
I'm curious, Tim. What makes you qualified to write about celebrity endorsement cases? Have you even spent five minutes learning and understanding the applicable law? Was there ever any chance that you would take the right holder's side? Or did you just start with your conclusion and work backwards from there (as is the TD norm)?
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I think you need to re-read what average_joe wrote, he makes a lot of sense here (more than Tim does in this case).
Ms Child using the product is not an endorsement of it, any more than you taking a public bus is an endorsement of the maker of the bus. You cannot apply A->B therefore B->A logic here.
Ms Child didn't make her name or sell her service, skill, or products based on "cooked with Thermador", she didn't play on their good name. However, they appear willing to play on her good name to sell their products.
If they stated "this product appeared on the Julia Child cooking shows" in text, it would be a statement of fact. The image is an attempt to imply endorsement, where none exists. It attempts to imply a relationship that does not exist, and leaves that implied relationship in the air.
Simply put, they don't need the image to state the fact.
Why not use an image of the empty Julia Child TV set with the product on it, or a stage hand polishing the product on the set? Ahh, there lies the answer, because they don't want to just show that the product was there, they want to create an implied relationship.
When you actually use logic, you can see what they are trying to do, and why it's not just a matter of "fact".
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The key is that they weren't just stating the fact that Julia Child used Thermador products. They were using her name and image in their advertisements. The fact that she used Thermador products isn't the issue. The issue is whether a consumer would see those advertisements and think that Julia Child and/or the Foundation endorsed the products.
I showed some of the ads to my wife and asked her what she thought (without any prodding). Her reaction was that she thought Julia Child was endorsing Thermador products. That seems to be the whole point of using her name and image in the ads. I don't have all the facts and can't do the proper analysis, but I think this case isn't likely to be even a close one.
The "oh, we're just stating facts" argument is laughable. If Coca-Cola had a picture of Mitt Romney drinking a Coke, they couldn't use it in all their ads and just claim that it represented the fact that Romney drinks Coke. They would be using the image to imply an endorsement.
And that's just the 1125(a) claim. There's the publicity claim as well.
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So your wife thought a dead person endorsed something? I think you need someone else for your "moron in a hurry" test.
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My wife is apparently more sophisticated than you and understands that since Child is dead it would be the right holder that would be authorizing the Child endorsement and not Child herself.
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Any man who polls his wife for the moron in a hurry test and posts about it online should probably feel perfectly qualified to answer the question himself.
Just sayin :)
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I represent the Anonymous Coward Kindly Quit Pretending You're Me to Agree with Yourself Foundation.
It has come to the attention of ACK QUIPY MAWYF that you may have used the name and avatar of Anonymous Coward to imply an endorsement of your post. Or someone else did, which is just as funny.
Thank you,
Joe Schmo, Esq
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I honestly don't know why you guys are defending this nonsense. It's truly silly. It's people wanting to be paid for representing a dead person vs. people using the *fact* that said dead person used their equipment to maybe get paid for sales of that equipment. Why is one allowed to use history but the other isn't?
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Oh, you are so close to getting "report bombed" for a comment like that. If Marcus was around, he would be piling it on right now!
Seriously though, This is another area where I think you are right. What Tim did was take maybe 50% of applicable law, the part he likes, and ignored the rest of the law. Further (as in my other post) he didn't apply the simple logic:
"Why not use an image of the empty Julia Child TV set with the product on it, or a stage hand polishing the product on the set? Ahh, there lies the answer, because they don't want to just show that the product was there, they want to create an implied relationship."
Tim would be unable to answer that question without first admitting that there is much more to this than his layman's understanding of the law (as filtered through Mike) allows. When you look at the alternative ways they could have gone, you can understand why they made this choice, and the reasons why there are issues.
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You give him far too much credit. I don't think he even made any effort to look at or understand the actual law when writing this piece purportedly about the law.
He says stuff like: "The material, it would appear, was used simply to state a historical fact. Using Child's image may fall into more of a grey area, but I would think historical facts are not subject to publicity rights."
That ignores the copyright aspect completely, ignores the likelihood of confusion analysis on the unfair competition claim, and ignores the actual law on publicity rights.
All he did was read their "but it's facts!" argument and then ran with it. It's the epitome of working backwards, and it's a prime example of the fact that none of the TD second-stringers (other than perhaps Glyn) is qualified to even begin to tackle legal issues.
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This claim insults morons in a hurry everywhere. They didn't photoshop the image. Julia Child really used their product. They didn't expressly say, "Julia Child endorses/-ed our products!" Julia is dead and has no goodwill to trade on. They're stating fact. Publishing photographs (even if you don't own the copyright) can be an expression of existing fact.
If a politician took photographs of himself using cocaine and someone else got the photograph and published it to prove the truth, would you argue that the politician should be able to suppress the publication of the photograph on the basis that he didn't endorse cocaine expressly or authorize the use of the photograph?
Why anyone would think the Foundation's endorsement is a matter of concern is odd. The Foundation isn't Julia Child. The Foundation isn't a renowned chef. I think if there's a claim at all, it's that the Foundation is unable to represent her interests as a chef.
"Your "but it's fact!" argument doesn't even address the legal issue, which is whether there's likelihood of confusion."
If it's legal to suppress the truth for the purposes of a person or organization retaining profitable control over a dead person's identity, then the law is wrong and needs to be changed.
"I'm curious, Tim. What makes you qualified to write about celebrity endorsement cases? Have you even spent five minutes learning and understanding the applicable law?"
Have you spent five minutes learning and understanding the applicable law? If so, how does doing so qualify you to write about celebrity endorsement cases as if the law is the only consideration here. Is the law always correct. Is the law even always evenly applied? Is the law even relevant if the law ignores common sense and general decency? Do you think that legality equals morality?
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And the mention of "moron in a hurry" insults everyone who understands that "moron in a hurry" is not the test used to determine false endorsement (or anything else in unfair competition/trademark law).
Julia is dead and has no goodwill to trade on.
On the contrary, her IP rights and goodwill are still quite valuable.
They're stating fact.
They're using her name and image *in commerce*. That it's factual is not the issue. The issue is likelihood of confusion (for the Section 43(a) claim) and identifiability (for the publicity claim).
Have you spent five minutes learning and understanding the applicable law?
I have. Clearly you and Tim have not.
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'I have. Clearly you and Tim have not.'"
Yeah. So you answered the first question in that paragraph and the only one that I had already assumed the correct answer to.
Please enlighten me as to how the legality of the issue is the only aspect that should be addressed. Do you believe that legality is morality? Do you, personally, believe that it's okay to suppress the expression of the truth in order to make money?
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Please enlighten me as to how the legality of the issue is the only aspect that should be addressed. Do you believe that legality is morality? Do you, personally, believe that it's okay to suppress the expression of the truth in order to make money?
The truth isn't being suppressed. You, I, and Tim are all free to say that Child used Thermador products. The First Amendment protects us. Once the speech turns commercial, the First Amendment protection is not as strong. And untruths in advertising are not protected at all. The issue here isn't the truth that she used Thermador, it's the untruth that she endorsed it. The facts, as I understand them, was that she refused to endorse the product commercially. The immoral act, in my opinion, is using her image and name to sell products, i.e., to give the impression of endorsement, when it's a known fact that she wouldn't have liked it. Nor do the current holder of her IP rights like it, apparently. I think too you need to understand that the issue is not the primary meaning of Julia Child, which is the person. The issue is the secondary meaning of Julia Child, which is like a brand name. It's their property and if they don't want it used to promote Thermador's products, then that's their right to stop. As to whether I believe that legality = morality, I'm not sure I have a good answer. I think that more often than not, if not almost always, the legal path is the moral one. They develop hand in hand. The right of publicity and the right against false endorsement recognize that we shouldn't force people to be used commercially when they don't want to be. That is the law, and I think it's quite moral. Hope I answered your questions.
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Or please explain how either Child's post-mortem reputation and character or the consumer is harmed or that the consumer could somehow be confused by the statement of the fact of her use of the oven along with the use of her name and of an image of her on the Thermador website SO VERY MUCH MORE than by all of the above in a highly publicized museum exhibit which she christened, and which, on the wall opposite the kitchen exhibit, features a photo of Child standing in front of the very Thermador oven that she regularly used or so very much more than publicly displaying the same over and over in reruns of her show.
"Wait, first I only thought she used Thermador ovens both at home and in her professional pursuits, and then of course I new she felt that her own personal Thermador rated a spot in the Smithsonian, but now that Thermador says she used Thermador ovens, I'm starting to suspect that maybe she also liked these ovens even more than other ovens." That harms her, harms me, how?
Now, the copyright claim on the photo. As much as I sometimes snore over copyright claims, I would be interested in hearing more about that.
If the photo is copyrighted and used without permission, then, the factors would seem to weigh against BSH. It's for commercial purposes, and it sounds like it's not really contested as to the prominence and proportion of its use, and it's probably reasonable to expect that someone heavily featuring your photo in an ad would normally pay you and that you suffer a loss if they don't.
Unless the copyright claim is some weird stretch like an imagined copyright of her image itself as opposed to a specific photo, I think that issue would have to hold water.
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won't somebody think of the dead culinary artists!?!?!
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