What’s in a Name? Fashion Game Gets Sued For Unauthorized Publicity

Photos courtesy of Guangzhou Feidong Software Technology Co./MutantBox Interactive Limited/Flare Magazine

Before you decide to name a product in your upcoming product line or promotional material after a famous celebrity, think again.  Last year, actress Brook Shields sued makeup brand Charlotte Tilbury for the unauthorized use of her name BROOK S. in association with an eyebrow pencil line.   More recently, another celebrity, Selena Gomez, filed a $10 million dollar lawsuit against software developers of a fashion styling mobile game called “Clothes Forever – Styling Game.”  In the lawsuit, Gomez alleges that one of the characters is based on her likeness, and from the looks of it, we tend to agree.  More importantly, Gomez states that she never gave permission for the use of her likeness and that the developers knowingly used her images without consent and profited from it.  

The fashion styling game allows users to make in app purchases such as buying “diamonds” for prices ranging from $.99 up to $99.99,as well as to go on a virtual shopping spree with celebrities such as the Kardashians, Gigi Hadid, Beyonce, and many more.

While it is not known yet whether the other celebrities mentioned in their promotional material have given their permission, which usually comes in the form of a licensing or royalty fee, we do know that Selena Gomez was certainly not one of them.  The complaint filed in California state court specifically alleges s that “Defendants never requested, consulted, or informed Gomez regarding the use of any of her publicity rights in connection with the Game.”  They went on to further state that Gomez would never have given her permission even if asked because of their “unsavory practice of luring its users to make in-game purchases in amounts as much as $99.99 to fund imaginary spending in the Game and unlock features.”

The Right of Publicity and Your Right to File a Claim

The core of Gomez’s lawsuit lies in the right of publicity, generally defined as an individual’s right to control and profit from the commercial use of his/her name, likeness, and persona.  Publicity rights is a form of intellectual property that gives the individual the exclusive right to license the use of their identity for commercial gain.   In the U.S, the right of publicity is protected by either state common or statutory law.  Some states, like California, recognize both common law and statutory right of publicity.  In order to bring a claim, there must be 1) use of name or likeness to the defendant’s advantage, commercial or otherwise; 2) lack of consent; and 3) resulting harm.  California’s statute adds two additional requirements: 4) a knowing use, and 5) a direct connection between the use and the commercial purpose.

Gomez is one of those celebrities who has developed a well-crafted brand and as the lawsuit states “carefully curated all endorsements and business opportunities” which both advances her brand and her image as a role model.  As part of her efforts to protect her brand, she has also registered several trademarks under her name, which will certainly only help her in proving injury and damages against the developers.

How to Legally Use a Celebrity’s Name or Image

It remains to be seen whether this case will ultimately settle out of court, but one thing is for sure, it will definitely be a costly lesson for these fashion app developers.  So the next time you think about using someone else’s name or image without their consent, especially in the case of a celebrity, be warned that you are opening yourself up to the likelihood of a lawsuit and substantial liability for unauthorized publicity.  The best course of action would be to get their consent in writing, and in the likely scenario that they will ask for money in exchange for their consent, then you will need to prepare a carefully crafted agreement outlining the terms and conditions for the use of their name and likeness.  

If you have any questions regarding publicity rights or other legal issues, contact us for more information.

Disclaimer: Although I am a lawyer by profession, I am not YOUR lawyer. This article is for informational and educational purposes only, does not constitute legal advice and does not establish any kind of attorney-client relationship with me. I am not liable or responsible for any damages resulting from or related to your use of this information.