REVISED — L.A. Court Allows Reese Witherspoon to Proceed with Right of Publicity Claim Against JewelerBy Jennifer E. Rothman
December 2, 2015
(Revised to reflect final court order)
On Tuesday, a court ruled that Reese Witherspoon could proceed with her right of publicity claims against a number of defendants who had used her name and image to sell various products, particularly jewelery. One company allegedly named an engagement ring, Reese, in reference to the famous actor. The court dismissed Witherspoon's trademark and trade dress claims. Notably, the court also rejected her right to privacy claim because she did not claim "emotional distress" and the "photos and facts were generally known by the public and the photos were taken in public with Plaintiff's consent."
In the partial summary judgment order, the court indicated that there may be legitimate First Amendment defenses to some of the uses of Witherspoon's name and image. The court differentiated between uses that indicate that the jewelery would "imitate" Witherspoon's "look" or that describe jewelry trends in an article-like format, and other types of uses that might be more exploitative of Witherspoon's "commercial value." The use of her name as the product name would likely fall in the latter camp.
Other issues would arise if, as claimed, Witherspoon was wearing or even given some of the jewelery by the defendants who she then complained showed pictures of her wearing that same jewelery. This case therefore raises interesting questions about implied consent and also whether it is legitimate to accurately report and show celebrities using products. If Tiger Woods wears a watch by Omega, Omega should have a First Amendment right to tell the public this -- not withstanding Woods' deal with Tag Heuer. Omega should not be able to imply that Woods endorses the Omega or the particular advertisement, but a company should be able to truthfully report information that consumers might like to know. At the same time, a whole ad campaign revolving around such a use by Woods would certainly cross the line and be exploitative in a way that should not be protected by the First Amendment. I will disclose that one of my former students, Courtney Conner, argued for the defendants and I'm proud to report that she accurately and importantly pointed out that "You don't have to be a news organization to invoke First Amendment protection." This is a growing area of controversy in the era of Instagram, Pinterest and Twitter in which celebrities post photographs and companies simply retweet and repost those same images. These sorts of simple retweets and reposts without additional enhancement or promotion by companies deserve First Amendment protection. A recent article in the National Law Review, however, urged companies not to do so because of potential liability. This issue needs to be settled to provide future guidance and ideally to permit such truthful reporting, at least when it does not do unreasonably exploit the person's identity and instead simply and accurately reports the information (including relevant images).