Julia Child Foundation Sues Airbnb for Using Her NameBy Jennifer E. Rothman
July 15, 2016
I finally got my hands on the complaint that was filed a few weeks ago by the Julia Child Foundation in California Superior Court. The Foundation holds the rights to Julia Child's "intellectual property rights, including all rights of publicity." Julia Child is, of course, the famous "cooking teacher, author and television personality" who wrote Mastering the Art of French Cooking.
Ms. Child and her husband, Paul, frequently stayed while in Provence, France in a cottage that they named "La Pitchoune." A lovely looking place that they nicknamed "La Peetch" and stocked with extensive cooking utensils.
The popular online service Airbnb facilitates the renting of residential properties all over the world, including in France. The Foundation's complaint alleges that Airbnb promoted its services by unlawfully using Julia Child's name in connection with promotional materials, a promotional event, and an email blast encouraging consumers to rent La Pitchoune. The listing for the property refers to the Child's use of the property--suggesting that she and Paul Child built the property--a fact I can not confirm (nor deny).
Airbnb's uses do not clearly fall under any of the specific exemptions of Section 3344. Nevertheless, there is an argument that the uses have "newsworthy value," and therefore are exempt from liabilty. Even if a court thought such a conclusion was a stretch, the First Amendment still applies to such uses.
To the extent that the Airbnb listing accurately refers to the house as one in which Julia Child stayed and cooked, this information is valuable to consumers and protected speech, even if it is made in commercial speech, such as advertising. As I suggest in my article, Commercial Speech, Commercial Use, and the Intellectual Property Quagmire, the simple fact that such speech may constitute commercial speech--speech that is less protected by the First Amendment--does not mean it is not protected by the First Amendment. In fact, recent Supreme Court decisions suggest commercial speech may be as protected as any other speech these days.
More importantly, such information is exactly the sort of truthful commercial speech that consumers care about and that deserves robust First Amendment protection. Consumers want to know what products celebrities and other public figures use. When used in a way that does not suggest a false endorsement and that is not unduly exploitative, such uses are protected speech.
This is similar to another recent suit that settled involving Reese Witherspoon's challenge to the use of her name and image by several companies, including one that sold jewelery. Some of the uses of Witherspoon's identity were accurate descriptions of jewelry or clothing that she was wearing. In context, some of the references were a form of reporting and others provided useful information to consumers, such as that a particular product was similar to something she wore. As I wrote regarding that case, many of these uses are protected by the First Amendment.
It's too early to know whether Airbnb crossed the line, but informing potential renters that Julia Child frequented a house does not in and of itself cross the line. And it's certainly information I'd like to know as a renter, just as I might enjoy seeking out a bar or cafe that was once frequented by Ernest Hemingway or Jack Kerouac. Sure those businesses benefit from the association, but it is not unfair for them to do so. We are all the richer for being able to share in this collective history. And if you have a chance to head off to Provence this summer, La Pitchoune, certainly looks worth renting.