Should It Be Against The Law To Say That The Watch You're Selling Was Worn By Sandra Bullock?
from the factual-information... dept
A few years ago, we wrote about how Summit Entertainment, the producers of the Twilight movies had sued a fashion designer for accurately noting that one of her jackets had been worn by the character of "Bella" in the movies. Summit was using a publicity rights claim, which -- as we've discussed at length -- is a messy patchwork of state laws that were supposed to be about stopping companies from using a famous person's image to endorse a product if they hadn't agreed to it. While it seems to be clearly questionable to just take a random celebrity and insist they're endorsing a product when they have nothing to do with it, the laws get a lot murkier pretty quickly when dealing with accurately portraying factual information -- such as the fashion designer above.More recently, we wrote about Katherine Heigl suing Duane Reade for posting a photograph of her walking out of a Duane Reade drugstore with a bag from the store. As we noted at the time, this (like the above situation) was an accurate representation of reality -- and claiming you can't accurately say that she shops at Duane Reade when she does raises all sorts of questions.
Apparently, there are more and more of these kinds of lawsuits popping up all over the place. Sandra Bullock has just settled a lawsuit with jewelry vendors who accurately pointed out that that they were selling a "a diamond-encrusted, white-band watch" that Bullock's character had warn in The Blind Side. Bullock's lawyers pointed out that she didn't want to endorse the watch, and that's fair, but accurately pointing out that her character wore the watch in a movie is not an endorsement. The article notes that there's a similar lawsuit (using the same lawyers) involving Halle Berry, suing ToyWatch for $2 million for associating her with merchandise that she wore in films as well.
You can understand why these people are upset -- they see a company "using" their name and likeness for commercial reasons, but at the same time, how can it be illegal to make an accurate statement? If the characters did wear that jewelry, then there should be no issue. Once again, we're left in this mess because these publicity rights laws are way too overreaching, leading to attempts to stifle perfectly accurate speech. And, of course, there's the reality of the situation, which is that most of these lawsuits are really just about trying to get paid.
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Filed Under: accurate statements, free speech, halle berry, jewelry, katherine heigl, publicity rights, sandra bullock
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No copyright on facts
And in patent law you can't patent facts of nature.
So...how do these claims have a leg to stand on?
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Re: No copyright on facts
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Re: Re: No copyright on facts
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Re: Re: Re: No copyright on facts
The whole thing is a huge mess, because they are right, the company wouldn't be making the statements about their products being used by famous people if they didn't think it would help them sell more products, so looked at that way the 'publicity rights' argument does have a bit of sense to it, their name/image is being used to endorse a product regardless of their agreement of the endorsement.
However, at the same time, the one bringing the suit did use the product(s) in question, that's a fact, so the company saying so should be perfectly fine, as they're simply stating facts, something that no-one should be able to control.
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Re: Re: No copyright on facts
Of course, what I openly wear in a movie is not my private life.
So that's where I draw the line to ridiculousness: I consider it ok if some celebrity objects to a company posting pictures of him/her with a paper bag in public. That's papparazzism.
But an objection to them mentioning what they wear on stage/film/TV? May be a nuisance, but not going to fly.
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Re:
But this hits on the real issue, which is a commercial use of what could be misunderstood to be a well known person endorsing a product.
I think what these companies could do, and get away with it is advertise that "the character played by X wore our watch in the movie..."
In this case, there is no claim that the actor may be endorsing a product by its use, but by a fictional character using a product. Who can sue?
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Re: Re:
In this case, there is no claim that the actor may be endorsing a product by its use, but by a fictional character using a product. Who can sue?
Better yet, just use the character's name. If the actor threatens to sue, just reply that the advertisement didn't even mention the actor. It wouldn't be foolproof since a movie star can afford to pay lawyers to make anyone's life miserable regardless, but it seems like it might give them a stronger case.
That said, it shouldn't be necessary. The law should always protect truthful statements.
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Only if its not true.
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A better way to handle it
If anyone who cares enough about a person that the association with that person makes the item more valuable to them, they'll also care enough that they'll see such a message.
Fight speech with speech.
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Re: A better way to handle it
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Re: A better way to handle it
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Phrasing
"The Prop Master of The Blind Side thought our tacky watch was perfect for the character played by Sandra Bullock."
or
"Katherine Heigl won't let us say that she shops at Duane Reade. But if she doesn't, this picture shows that she had the good sense to mug someone who does!"
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Re: Phrasing
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As long as you're not trying to sell me..
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Re:
How much and soon can I pick them up?
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difference
After that, you get into the use of likeness for commercial gain.
Put another way, if this was not the case, then the paps would follow celebrities around and sell every image of them with a given shoe, shirt, pair of jeans, watch, or other accessory to the companies involved, who could use these "facts" in their product promotion, implying all sorts of endorsement where none exists. They just happened to put it on that day.
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Re: difference
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Re: difference
And you're saying they should have to ask permission to make a factual statement about who wore what clothes in public.
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that Bullock's character had warn in The Blind Side.
"Warn" should be "worn."
Great article!
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that Bullock's character had warn in The Blind Side.
"Warn" should be "worn."
I hate to be the grammar police but... that was a spelling mistake, not a grammar mistake. ;-)
Now I hope someone corrects me that that was a word choice mistake, not a grammar mistake.
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But more to the point of your explicit statement -- you are being the typo police, not the grammar police.
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D'oh, I was even beaten to the pedantic punch. Use "reply to this" next time so we can quickly tell that someone else has already made the silly comment we're thinking of!
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Wow
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Counter Sue_We're Mad As Hell And..
However they are getting away with these lawsuits, they must be stopped.
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Established Law
If they put this information about the product into an "information brochure" type thing, then it likely would be completely fine. But to outright basically use the fact some person wore an item as an advertisement doesn't seem like a good thing to have. Because if that were to happen then the celebs would be FLOODED with paps even more so than they already are, just to get that one snap of them wearing nikes or drinking Starbucks.
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Re: Established Law
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Re: Established Law
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Re: Established Law
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Re: Re: Established Law
"Reporting News" is not commercial product advertisement.
Stating a "fact" is fine. But the rules that are very justifiably set in place to stop people from using your likeness as they please just because you happened to want a coke are good things! Not to mention the whole "well they have to be careful what they do in public!" is straight up bullshit. You literally can't live in the USA without using some type of corporate product. They have to buy clothes from somewhere, they have to buy food from somewhere, ect ect.
Being able to use somebody's picture in advertisement just because they happen to wear your product, eat your product, or drive your product is crazy and exploitative.
A twitter pic of somebody coming out of your store is a blurry line, but open magazine advertisement for your product is NOT.
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Re: Re: Re: Established Law
You just contradicted yourself. You say it's OK to state a fact except when it's not. When is it not OK? I just find it strange that the right to not have someone benefit from one's likeness, which isn't even in the Constitution, can ever be more important than the First Amendment.
Most of the time when we have a right to keep someone else from doing something, it's because that thing harms us, but in this case there isn't even any harm, or if there it's just a harm of a theoretical possibility of making more money than we otherwise could. Talk about flimsy.
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In this case, Bullock has a legal claim under Civ. Code 3344 if Toy Watch used her name and/or likeness in advertising without her permission. Apparently they did not have her consent, so they were liable. Whether or not the statement that her character wore the watch in "Blind Side" is factual, is irrelevant to her cause of action.
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I don't know about that. I don't remember people saying "this is definitely legal". The gist I'm getting is "it is ridiculous for this to be illegal". I think the commenters are absolutely getting it, and believe that it's really stupid.
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Re:
You worded that like a lawyer, for sure.
I also agree with nasch that the discussion her isn't whether this situation is actionable, but rather if the law itself is reprehensible.
As for myself, I wonder if this California statute could possibly be incompatible with the First Amendment protections on free speech.
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An NSA agent admitted perjuring himself to the full SCOTUS when it was in session. Again, no consequences. These are small examples of a culture of failed responsibility. Who could ever see this, and have any respect for US law anymore?
The Courts and the Legislature are incapable of controlling the Executive branch, and won't even bother trying to cover up that loss of power and obligation. This is not one president, but at least the last four who pretty much do as they please.
This is an extremely dangerous structural position for any government, or more importantly peoples, to be in.
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