The instant name recognition and accompanying barrage of associated media has the potential to dramatically increase traffic not only to the celebrity content but to collateral site content as well.
However, the use of celebrity imagery also presents legal risks beyond those normally associated with other types of third-party content. Moreover, unlike many non-celebrities, most celebrities have the financial resources to raise significant and in some cases even novel, legal challenges.
Some of the more famous early cases in this area highlight the risks. In the late 1990s, Lin Milano, mother of actress Alyssa Milano, formed Cyber-Trackers for the purpose of identifying and challenging websites that allegedly featured nude images of her daughter.
Most of these challenges were based on traditional notions of copyright law, as Milano apparently had acquired the copyrights to most of the nude imagery in question. Among the more widely reported of these actions was one against John Lindgren, who Milano sued for copyright infringement, trademark infringement and violation of rights of publicity. Even though Lindgren took down the challenged images shortly after Milano sued, he nonetheless failed to retain counsel or appear in court to contest the lawsuit, according to reports. A federal judge subsequently awarded Milano $230,000 in damages and more than $8,000 in legal fees.
A substantial risk also exists that celebrity imagery will be found to be fake unless there is evidence to prove otherwise. This, too, may open the website operator to significant liability.
For example, in the late 1990s content supposedly involving Olympic silver-medal figure skater Nancy Kerrigan began to appear on various websites. Kerrigan moved quickly to file suit, alleging claims of invasion of privacy, as well as defamation. According to published reports, the website operator settled by relinquishing its computers to Kerrigan.
More recently, General Media (Penthouse) faced a legal challenge resulting from its paper publication of pictures allegedly of Anna Kournikova. The case was complicated by the fact that the pictures were of another well-known individual, the daughter-in-law of fashion designer Luciano Benetton. Ultimately, General Media faced litigation from both Benetton and Kournikova, resulting in a disruption in newsstand distribution of the issue and the removal of the involved content from the magazine’s website.
While General Media settled quickly with Benetton, the litigation with Kournikova continued for about a year before it was resolved. This episode also gave rise to the filing of a number of class-action lawsuits claiming that the purchasers of that issue of Penthouse were defrauded by false claims that the images were of Kournikova. The suits were apparently all dismissed.
Even more recent are the myriad actions involving Paris Hilton and Cameron Diaz. These actions involved site operators, photographers and even family members. The litigation over this content is a clear reminder of the legal risks involved in publishing celebrity images.
Given the high probability of legal challenges when dealing with celebrity content, there are a number of best practices that can be put into place before publishing such images — taking into account lessons learned from cases that have been decided by the courts — that may help to manage the inherent risks.
First, clear all copyrights. Many excellent articles have appeared in these pages and at XBiz.com detailing the best processes for ensuring that licensed or purchased content is free of copyright issues. Given that this is often the most significant risk with celebrity-oriented content, extreme and detailed diligence is due.
Second, consider issues relating to rights of publicity and rights of privacy. Many states have passed laws that allow celebrities to control the commercial exploitation of their persona.
For example, in the case of Catherine Bosley, “locally famous” Ohio weather person, one component of the action involved the potential commercial exploitation of images of Bosley participating in a wet T-shirt contest.
Specifically, the court was concerned that, contrary to the defendant’s argument that it was merely reporting facts and that its actions were protected under the First Amendment, the site made use of the images in a way that promoted the sale of its goods or services.
In its decision, which was upheld on appeal, the court said it was concerned that the imagery was not accompanied by editorial content and was, therefore, not worthy of full First Amendment protection under the public affairs exception.
Due to lack of editorial content, the lower court deemed that the defendants used the images of Bosley solely for the purpose of commercially exploiting her fame. Based on this ruling, best practices dictate using editorial content along with any celebrity images in order to establish them as newsworthy and, therefore, eligible for free-press protections. It also is prudent to avoid using the imagery principally, if at all, to drive commercial web activity.
Third, consider that the use of celebrity imagery opens the possibility for a charge of defamation. For example, a number of years ago, Florence Henderson of “Brady Bunch” fame brought an action charging defamation, among other claims, against a company selling T-shirts that included a picture of her along with the words “Porn Queen.”
Here, in order to minimize risk, be careful to avoid characterizing a celebrity in any manner. Rather, as suggested above, focus on describing facts and events.
The use of celebrity content presents opportunities and risks. Where the rights can be cleared and a degree of comfort can be achieved that no laws will be violated by the use of such content, one must still keep in mind that legal challenges will almost inevitably follow.
In these circumstances, a well-thought-through clearance process is a necessity and every step must be taken with care to mitigate exposure. Ultimately, one who comes into possession of such content should be prepared to not make use of the content unless all of the legal hurdles can be cleared.
Ira Jay Levy is a partner in the litigation department of Goodwin Procter LLP, where he specializes in intellectual property and related entertainment issues.