Francisca Sinn

RE: https://mastodon.social/@arstechnica/116557073779991112

This is what lawyers like me (#advertising and marketing law) help our clients avoid. Either someone ignored legal advice or never sought review, or someone used the image as a placeholder and no one recognized the celebrity nor went back to check that they had a proper model release, or, also possible that someone used an “AI” tool to generate an image to “look like Dua Lipa”, thinking they could avoid liability.(Wrong.)

tldr: Hire an advertising lawyer.

#IP #PersonalityRights #Trademark #Law

May 11 at 6:00pmWeb
Show threadEFMay 11
@fsinn could just be a corporate marketing ploy. $15M is small fry for worldwide coverage.
Show threadFrancisca SinnMay 11
@EF While certainly possible, the manner and scope of use makes me find this unlikely. It’s not a social media post they can just pull down. If they did it as a marketing stunt, they definitely ignored legal advice. But it’s possible.
Show threadEFMay 11
@fsinn your theory is probably more reasonable. Seems at the moment, experts are freely ignored.
Show thread𝐉𝐨𝐧 𝐁𝐞𝐫𝐠𝐞𝐫May 11
@fsinn You'd think Samsung, of all companies, would know better, since they got slammed back in the 90s for doing sort of the same thing, only not with an actual picture of a celebrity, but with a picture of a robot dressed up to look like Vanna White. (White v. Samsung (1992) 971 F.2d 1395, although the really famous opinion is Kozinski's dissent from denial of en banc review at 989 F.2d 1512.) It's not a huge logical leap from "we got in trouble for using an image that wasn't Vanna White but reminded people of her" to "maybe we should rethink our plan to use an image that actually is of a current celebrity."
Show threadFrancisca SinnMay 11
@jonberger Thanks for this, Jon! I didn’t remember that case, but there were a few cases of companies pulling images of “real people”, non-celebrities, off of the internet for use in ads about 20 yrs ago, and even that was clearly offside. (Context for non-lawyer readers: here the image is that of someone who monetizes her image, so it's even higher risk.) You’d think Samsung would remember its own prior case, but if was the 90’s, then almost certainly the entire marketing team is different
Show thread𝐉𝐨𝐧 𝐁𝐞𝐫𝐠𝐞𝐫May 11
@fsinn I only know about it because we read the Kozinski dissent in my law school IP class. I gather it's pretty much the IP law equivalent of Pierson v. Post ("fox case") in Property, Raffles v. Wickelshaus ("two ships Peerless") in Contracts, and Palsgraf ("too arcane to summarize") in Torts: a deep dive into the philosophical underpinnings of the area of law. Say what you want about Kozinski -- and God knows there's plenty to say -- the guy could write. Anyway, this bears out your theory about the marketing folks failing to consult a lawyer, because any lawyer who'd taken an IP class in the last 30 years would have known about White v. Samsung.
Show threadFrancisca SinnMay 11
@jonberger I’m a ‘98 law grad, but Canada, so maybe, just don’t recall, but I learned working with legend Brenda Pritchard, who literally wrote the book on advertising and marketing law in Canada and was my go-to external counsel for years, practicing in-house with a brilliant and irreverent brand team at Virgin Mobile Canada, and now more than a decade as external counsel working with an amazing team at an award-winning agency. Cases studied have faded in memory to on the job experience :)
Show threadoldguycrustyMay 11

@jonberger @fsinn

I love this for #DuaLipa ..

Yes, they should have asked, cleared, and paid her for it. That they did not, could be for any of the reasons you listed.

But, she now gets a ton of press, win or lose. The more they protest and litigate, the more press she gets. In pop-culture, this is a win/windfall for her. The longer they drag this out, the better for her.. They will eventually pay, I am certain.

1/2....

Show threadoldguycrustyMay 11

@jonberger @fsinn

Big #DuaLipa fanboy here BTW, even tho I am many decades past her ideal #demographic

The smart thing for Samsung now, would be to get her under contract for a whole campaign using her & this fuckup as a theme.

She wins here no matter what. #PR nightmare for #Samsung - total bonus points for #DuaLipa...