Mastodawn

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

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𝐉𝐨𝐧 𝐁𝐞𝐫𝐠𝐞𝐫 May 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."

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Francisca Sinn May 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

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𝐉𝐨𝐧 𝐁𝐞𝐫𝐠𝐞𝐫

@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.

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Francisca Sinn May 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 :)