Should It Be Against The Law To Say That The Watch You're Selling Was Worn By Sandra Bullock?

from the factual-information... dept

Wed, May 21st 2014 1:04pm — Mike Masnick

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

45 Comments

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rw (profile), 21 May 2014 @ 12:50pm

Yes, but look at all the money the lawyers make. We need them to protect the poor, starving lawyers.
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OldMugwump (profile), 21 May 2014 @ 1:24pm

No copyright on facts
My understanding is that it's settled law that you can't copyright 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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That One Guy (profile), 21 May 2014 @ 1:31pm

Re: No copyright on facts
They're not using copyright, but 'publicity rights', which may sound sensible at first('people having their images/names used to endorse something they don't use or even like is something that should be stopped, right?'), but can get real messy, as indicated here, where they are in practice, if not fact, claiming the rights to facts.
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That One Guy (profile), 21 May 2014 @ 1:34pm

Sounds like a golden opportunity to me, companies can offer jewelry or other consumer product companies a deal: we'll use your product in our show/movie/music video, in exchange for the rights to use the fact that they were used for future advertising.
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Anonymous Coward, 21 May 2014 @ 1:34pm

It shouldn't be against the law to say it, but it should be against the law to care about it.
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Bob, 21 May 2014 @ 1:36pm

Only if its not true.
Although, I guess the real question is, can you make the unsubstantiated claim if you can't prove it?
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Anonymous Coward, 21 May 2014 @ 1:36pm

A better way to handle it
"Yes I used product XYZ, but I don't like it and won't use it again"

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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limbodog (profile), 21 May 2014 @ 1:41pm

To me, this is a corporate brand of the NSA snooping. It's "just metadata" And I have no problem with regulating commerce in this regard. I don't feel you should be able to use people in advertising without their permission.
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OldMugwump (profile), 21 May 2014 @ 1:50pm

Re: Re: No copyright on facts
I think 'publicity rights' would cover an endorsement of a product, but not a simple statement of fact about the history of an item.
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Anonymous Coward, 21 May 2014 @ 2:08pm

Phrasing
The designers just have to be more careful about wording their ads:

"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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That One Guy (profile), 21 May 2014 @ 2:34pm

Re: Re: Re: No copyright on facts
Which is where things get messy, as they're basically claiming that those 'statements of facts' are an endorsement, claiming control over the facts as I noted above.

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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That One Guy (profile), 21 May 2014 @ 2:36pm

Re: A better way to handle it
Yeah, simply responding to something like this with 'I used to use/go to store X, but after this I won't be anymore, and I urge any of my fans not to either' would be far more effective, and likely to keep companies from doing the same in the future.
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Anonymous Coward, 21 May 2014 @ 2:55pm

Re:
This is already done.
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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Groaker (profile), 21 May 2014 @ 3:13pm

The only meaning that law has today is either how much money you have, or who you know (which is usually congruent.)
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Paul Renault (profile), 21 May 2014 @ 3:40pm

As long as you're not trying to sell me..
..John Voight's Chrysler Le Baron, I say it's OK.
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Bollocks, 21 May 2014 @ 4:11pm

These are the same Panties Sandra Bullock's character Ryan Stone (in the motion picture Gravity) shat herself in.
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Anonymous, 21 May 2014 @ 4:35pm

How can it be illegal to make an accurate statement? Ask the government that in reference to Edward Snowden.
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miatajim (profile), 21 May 2014 @ 4:52pm

Re:
QVC?
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Whatever, 21 May 2014 @ 5:06pm

difference
There is a difference between "she happened to shop there one day" and "she endorses the store". What they are doing is using a fact (they may have had the product on their person at some point or had a bag in their hands) and using it to imply an endorsement.

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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JP Jones (profile), 21 May 2014 @ 6:09pm

I hate to be the grammar police but...

that Bullock's character had warn in The Blind Side.

"Warn" should be "worn."

Great article!
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Anonymous Coward, 21 May 2014 @ 6:25pm

Re:
--These are the same Panties Sandra Bullock's character Ryan Stone (in the motion picture Gravity) shat herself in.

How much and soon can I pick them up?
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Groaker (profile), 21 May 2014 @ 6:30pm

Articles on free blogs, and the comments made upon them are not unlike informal spoken conversation. Individuals often commit the most horrendous of grammatical crimes without much attention being paid, or even noticed.

But more to the point of your explicit statement -- you are being the typo police, not the grammar police.
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Anonymous Coward, 21 May 2014 @ 7:50pm

Re: difference
Is shitting on everything your life goal, troll boy?
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Roger Strong (profile), 21 May 2014 @ 8:40pm

Re: difference
It would also be peachy keen to advertise that I sell cars to drive on the same road system as (big bold letters) _____. Or that I sell real estate on the same continent as _____'s home. Or that I sell cell phones on the same network as _____. Or that I sell the same anti-psychosis medication used by Kanye West.
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Anonymous Coward, 21 May 2014 @ 10:32pm

Re: A better way to handle it
Then the company just needs to charge them a $3500 fee for the negative feedback :)
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A. Coward, 21 May 2014 @ 10:33pm

Wow
My opinion of Mss. Bullock and Berry just went down several notches.
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David, 22 May 2014 @ 1:50am

Re: Re: No copyright on facts
Personally, I'd be pissed at hell if people started reporting what I buy in which amounts where from which manufacturer. This is more like "privacy rights". I have a right to lead my private life without detailed accountability to the public.

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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Anonymous Coward, 22 May 2014 @ 7:12am

Counter Sue_We're Mad As Hell And..
If there is no mention of the brand of watch in an advertisement, how can it be construed that there is somehow an endorsement of the watch. It is definitely a viable selling point of added interest and value to point out to a customer that it had been worn in a movie by Sandra Bullock. What are you going to do Sandra? Sue me for mentioning your name in a blog? I'm not selling anything except my perception, and I am offering it free to all.

However they are getting away with these lawsuits, they must be stopped.
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Geno0wl (profile), 22 May 2014 @ 7:18am

Established Law
I thought it was rather established law that you could not use somebody's likeness for commercial gain without their permission. That is why all the reality shows have to have people sign consent forms or they blur their faces.
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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John Fenderson (profile), 22 May 2014 @ 8:51am

Re: Established Law
This is a little different than that. This is the case of an actor wearing something specific in a movie. Should it not be allowed for people to mention that "X wore Y in the movie Z?" It's a factual statement, and clearly doesn't imply that the actor endorses the thing any more than the fact that I use specific brand of computer supplied by my employer implies that I endorse that brand.
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dsgjfdjggda, 22 May 2014 @ 9:05am

Re: Established Law
Established law tends to say that one does not have any expectation of privacy in a public place, such as on a street. For this reason it is generally perfectly legal to film or photograph any person in a public place, with or without their consent, for commercial gain or otherwise. If a celebrity does not want to be associated with a product, they can choose not to carry that product around in a public place. I imaginge celebs ARE "flooded with paps" looking for everything from them picking their nose to eating McRibs. It all comes down to what they choose to do in public. You seem to think that the reason someone takes the photo affects if it is legal. I don't see a difference, whether they are just trying to get a picture of that person, or they want to comment on the designer clothes they're wearing, or they want to show that the celeb went to a Lakers game. Taking pictures of things that happen in public and saying those things happened shouldn't even bring up the question of legality.
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nasch (profile), 22 May 2014 @ 9:39am

Re: Re:
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?

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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nasch (profile), 22 May 2014 @ 9:42am

Re: difference
They just happened to put it on that day.

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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nasch (profile), 22 May 2014 @ 9:43am

Re:
I hate to be the grammar police but...

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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nasch (profile), 22 May 2014 @ 9:44am

Re:
But more to the point of your explicit statement -- you are being the typo police, not the grammar police.

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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max, 22 May 2014 @ 1:20pm

Re: Established Law
So if I am arrested, I can sue the newspapers and TV stations for violating my publicity rights by accurately reporting my arrest? After all the news is a commercial product and they are using my likeness & name for commercial purposes.
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David, 22 May 2014 @ 1:22pm

Re:
So, you're saying the the watch maker should sue Sandra Bullock for publicity rights for their watch? What's good for the goose, I suppose!
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David, 22 May 2014 @ 1:24pm

Re: Phrasing
"Hey! Where did Katherine Heigl get those Duane Reade bags?"
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pp91303 (profile), 22 May 2014 @ 1:59pm

The commenters are missing the legal concept at work here. California's right of publicity statute (Civil Code 3344) prohibits the use of a person's name or likeness without their permission and the person can recover damages in the amount of profit that was earned as a result of that unauthorized use. The law doesn't deal with the issue of endorsement per se. That would be covered by a Lanham Act violation (i.e. false or misleading advertising). A person can be an unknown actor or model and if a company uses his/her image in an advertisement without permission, they will be liable. Obviously, when the person is a famous star, use of their image can lead consumers to believe that the star is endorsing their product. However, mistaken belief of endorsement is not an element of a Calif. Civil Code 3344 claim. Merely using the person's image in an advertisement without their permission creates liability.

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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nasch (profile), 22 May 2014 @ 3:06pm

Re:
The commenters are missing the legal concept at work here.

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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Groaker (profile), 22 May 2014 @ 4:10pm

Legal concepts have no meaning in this society anymore. It is power, and power alone that moves the system. It is corrupt from the head down. The FBI just got up and left a Senate meeting when they didn't like the questions that they were asked. No consequences. The Senators at that meeting should have introduced the FBI members to the cells underneath the Congressional building.

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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Gwiz (profile), 22 May 2014 @ 5:45pm

Re:
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.

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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Anonymous Coward, 23 May 2014 @ 4:15am

In my clients defense, we are selling an item worn by an actress in the movie. We would be selling this watch related to the movie character regardless of who the actress was.
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Geno0wl (profile), 27 May 2014 @ 6:02am

Re: Re: Established Law
That isn't what I was saying and you know it.
"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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nasch (profile), 27 May 2014 @ 7:35am

Re: Re: Re: Established Law
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!

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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