Dua Lipa sued Samsung for using a photograph of her on boxes of TVs sold by Samsung. She accused Samsung of copyright and trademark infringement and of violating her “right of publicity”. The photograph is one of Dua Lipa, but more importantly for the copyright claim, she owns the copyright to the photo. Without her permission to use it, they have to show why they can use it. Given they were using the photograph on the packages of the TV’s they were selling, fair use is likely a tough argument for them to win. That’s why Samsung is trying to point to an unnamed “content partner” who supposedly assured them of permission. One has to get permission to use another’s copyrighted work. That includes drawings, writings, and yes, photographs.
The trademark and the “right to publicity” claims are more closely related. In both of those claims, Dua Lipa is pointing out that Samsung is trying to use her reputation and fame to sell their TVs. If people see her photo on the box, do they think she either endorses the product or is just more likely to buy it because she is “on” it? If so, that’s not OK unless she gives permission (and usually receives some compensation) for them to do so.
Famous people get the “right to publicity” claims for their names, images, and likenesses because us commoners recognize them and put some value to that. If I see an athlete endorsing workout gear, that might sway me to buy it if I respect that athlete’s skills. I might even care where they bank. This is also sometimes called “Personality Rights.”
If this sounds familiar, is because Fatimeh wrote an earlier post about Pattie Gonia and Patagonia where there was an agreement between the two that Patagonia alleged was not upheld. As Fatimeh put it “this feels less like an infringement story and more like a relationship story.” Here, however, there was no prior agreement. As celebrities and influencers continue to impact buying decisions and gain lucrative endorsement deals because of that, these suits will only increase.
All that to repeat our usual advice: Want to use a photo? Get permission.