If you ask a celebrity to endorse your products and they turn you down, you can’t get over your disappointment by simply engaging a look-a-like model to do the job. This point is I suspect about to be rammed home in a court of law in Los Angeles where Ariana Grande has sued Forever 21 for posting at least 30 unauthorised images and videos across its website and social media platforms using her name, likeness and music. The prospect of Ariana being successful is high. The same would be the case even if she hadn’t been asked to endorse the Forever 21 products and Forever 21 had not been turned down.
Both the US and UK have laws which prevent exploitation of a person’s image without their permission. Our experience is that both the use of look-a-like celebrities and action taken by those celebrities to prevent the use of their image is becoming more prevalent.
In the entertainment industry the search for opportunities to earn money outside of the selling and streaming of music is making these types of legal fights more common. And it’s not just entertainment, sports personalities are also looking at using rights to prevent the exploitation of their image without their permission and outside of any commercial arrangement.
In the UK the legal rights are found in the law of ‘passing off’. In order to succeed in an action your celebrity needs to show two things. Firstly, at the time of the acts complained of they had sufficient reputation and goodwill, secondly that the actions of the business using their image gives rise to the false message, which would be understood by a not insignificant section of the general public that their goods have been endorsed recommended and approved by the celebrity. The first test is easy to pass for a celebrity or sports personality. The second is more tricky in that you are asking the public to assume that the images are of the celebrity and not a look-a-like. In the UK being able to show that a significant number of people who see the advertisements immediately note that the images are not of the celebrity but a look alike may give the defendants some wriggle room. However the risks for a defendant are high as most commonly efforts will be made to ensure that the vast majority of people seeing the advertisement accept that the images are of the images and not a look-a-like.
In this case Ariana turned down the deal as the sums offered were not enough reward for the benefit her endorsement would bring to the business. It is likely however that Forever 21 may well now have to pay a considerable sum to settle the matter or a sum as ordered by the court to end the matter and this sum may be not one they will not have necessarily budgeted for.
Briffa are experts in all aspects of intellectual property law and practice, including passing off. If you would like to discuss any intellectual property matter with one of our specialist lawyers, please do not hesitate to contact us on firstname.lastname@example.org or 020 7288 6003.
Written by Margaret Briffa, Solicitor
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