Luxury retailer Burberry has made excellent use of Facebook’s Timeline feature, using the tool to showcase advertisements and other photographs showing their products over the years.  (If you scan down to the 1910s, you can check out some Burberry-brand aviator suits which I’m pretty sure would be tough to track down today.)  This all sounds well and good, but this is a law blog and not a paid endorsement for Burberry, so you know there’s conflict ahead.

When Bogart, LLC, the company that manages Humphrey Bogart’s celebrity rights, got wind of the fact that Burberry had included a photograph of Bogart wearing a Burberry trench in the film Casablanca they threatened Burberry, claiming violation of right of publicity as well as trademark infringement and unfair competition. Burberry fired back, requesting declaratory judgment of non-infringement.

So who’s correct here?  It’s first important to note that copyright and ownership in the photo itself is not an issue here– Burberry had obtained a proper license to use the photo.  With copyright off the table, the question then becomes whether Burberry’s use of the photo constituted a trademark infringement or, failing that, a violation of Bogart’s right of publicity.

Burberry should have a fairly good argument as to the trademark issue.  It’s not as though they’ve launched a retail campaign with advertisements, signage, and other media that trades on the image.  The use in the Facebook Timeline, they’d argue, when taken in context, is one of many factual statements the company is making about its history.

When it comes to the right of publicity claim, things are less clear.  As the Bose Media Law Blog explains nicely, when it comes to these claims, it’s good to be in California.

Looking past the legal analysis under these doctrines, this case raises much larger questions that brand owners, marketing professionals, and lawyers will want to watch closely.  Depending on how this case proceeds, the court may address important issues regarding social media, advertising, and free speech.

Right now, the lines are a bit blurry (which could help or hurt Burberry here).  It’s clear that Burberry enjoys some commercial advantage by being on Facebook (oh, and it probably doesn’t hurt to have 12 million fans).  But does that mean that all of the company’s activities on Facebook are strictly commercial and not legitimate instances of story-telling or commentary (thus entitled to First Amendment protection)?

Courts are going to face more and more difficult determinations such as this one and must be careful to craft rules that provide clarity, fairness, and workability to all parties involved.  There’s no question that the law should recognize and protect the rights of celebrities as relates to unwelcome endorsements or false sponsorship, but the law should be careful, too, to leave room for story-telling.

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