#Liability: Avoiding the Lanham Act and the Right of Publicity on Social Media
Suppose your company wants to engage young people through social media, building your brand among thousands of potential customers in an effective and relatively inexpensive manner. You learn that a photographer has snapped a picture of a popular celebrity leaving your store, shopping bags with your logo in hand. Excited by this opportunity to improve your brand, your company posts the photograph on social media. Three days later, you have a lawsuit on your hands.
If this sounds far-fetched, think again. Lawsuits have proliferated in recent years as celebrities have claimed violations of their statutory and common-law rights when companies post pictures on social media. Plaintiffs ranging from Katherine Heigl to Humphrey Bogart’s estate have filed lawsuits against companies after the companies posted the celebrities’ pictures on social media. However, none of these suits has come to judgment, instead settling privately before trial, which provides little guidance to potential defendants, plaintiffs, and judges.
Social media is an increasingly common and effective tool for companies to reach consumers. Most companies use social media—83 percent of Fortune 500 companies have corporate Twitter accounts and 80 percent use Facebook. In 2015, companies were projected to spend over $23.6 billion worldwide on social media advertising. More importantly, this investment can generate immense returns. A recent study found that each Facebook post made by large companies generated, on average, over 24,000 “likes” from consumers and 350 positive, consumer-written comments. Another study found that the presence of Facebook “likes” can increase sales by almost 13 percent for online retailers. User comments and posts are also valuable. For example, each time a Ticketmaster user posts that she is considering attending an event, Ticketmaster receives an average of $5.30 in direct sales from that post.
Even a single post can have a massive impact, especially if it involves a celebrity. Samsung signed baseball player David Ortiz as an “MLB social media insider” (a form of endorsement deal) the day before Ortiz visited the White House to celebrate his team’s World Series win. While at the celebration, Ortiz took a “selfie” of himself with President Barack Obama and posted it to his Twitter account. Shortly thereafter, Samsung started using the picture as a “promoted post” on Twitter, while another Samsung corporate account shared the photo and told fans it was taken with a Galaxy Note 3, a type of Samsung phone. As of October 19, 2015, the original photo had been “retweeted” 40,417 times and “favorited” 46,721 times. When Samsung orchestrated a similar stunt with comedian Ellen DeGeneres at the 2014 Oscars, involving a photo with actors Meryl Streep, Bradley Cooper, and Jennifer Lawrence, the tweet became known as the “tweet heard ‘round the world,” with nearly three million accounts retweeting the photograph (and millions more viewing it) within the first day. This form of marketing works; after the DeGeneres photo was posted, Samsung was mentioned about nine hundred times per minute on social media.
Given this staggering potential, it is no surprise that companies are using social media despite the high risk of litigation and the lack of any judicial opinions to guide their use. This Comment provides guidance to companies wishing to take advantage of the benefits of social media without incurring liability. Although the few cases filed in court have settled, leaving companies with undisclosed bills and legal uncertainty about social media, a few simple behaviors on the part of companies could protect them from liability.