Intellectual Property Litigation Alert >> Olympians` Right of Publicity

FEBRUARY 2013
LITIGATION
INTELLECTUAL PROPERTY >> ALERT
OLYMPIANS’ RIGHT OF PUBLICITY CLAIMS OVER A
FACEBOOK APP TRUMPED BY FIRST AMENDMENT
A California state court recently dismissed a lawsuit brought by former Olympians, including Mark Spitz
and Greg Louganis, against Samsung for right of publicity violations over a Facebook app that used their
names, images and biographical information without their consent.
The app, called the “U.S. Olympic
Genome Project,” compared a user’s
Facebook profile with biographical
data of almost 8,000 United States
Olympic athletes, showing a user what
they had in common with various
Olympians. For example, a user
could determine if they were from the
same hometown as Amanda Beard
or shared the same favorite food as
Mark Spitz. The former Olympians
sought to bar Samsung’s use of their
names, images and biographical data,
under California’s Right of Publicity
laws, claiming that this use without
their authority improperly created
the impression that they endorsed
Samsung’s products and business
when they had not. Samsung moved
to strike the Olympians’ lawsuit under
California’s anti-SLAP statute, which
allows defendants to seek dismissal
of lawsuits that chill First Amendment
expression. Samsung argued, and the
California court agreed, that although
Samsung created the Genome Project,
and its trademark was displayed on
several pages of the app, the Genome
Project was not commercial speech,
particularly because it did not advertise
a specific Samsung product, and
THE BOTTOM LINE
Under California law, to determine whether a company’s speech is protected under
the First Amendment and immune from a right of publicity claim, the relevant inquiry
is whether or not the speech proposes a commercial transaction. Additionally, under
California law, if the speech does not specifically propose a commercial transaction,
but instead is made in part for ideological, political or entertainment purposes, it
is likely to be protected under the First Amendment. This is the case even when a
company’s logo is used in connection with the speech, as long as no reference is
made to a specific product.
was protected speech under the First
Amendment.
BACKGROUND
To develop the Genome Project app,
biographical information of current and
former Olympic athletes was gathered
from facts that were publicly available.
Samsung’s logo appeared on the
pages when a user searched for
commonalities with the Olympic
athletes, but the app did not advertise
any specific Samsung product. In
addition, the app allowed users to take
quizzes, earn tokens that could be
used to redeem rewards, and enter
into weekly giveaways of Samsung’s
products.
After the Olympians filed their lawsuit
for violation of their rights of publicity,
Samsung removed from the Genome
Project all the Olympic athletes who
had joined in the suit and moved to
strike the lawsuit, arguing that the
Olympians’ names, images and
biographical data was protected First
Amendment speech. Samsung
claimed that use of the Genome
Project was not commercial speech,
and, just like ideological and political
speech, was protected by the First
Amendment, as it constituted speech
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FEBRUARY 2013
LITIGATION
INTELLECTUAL PROPERTY >> ALERT
made in a public forum in connection
with issues of public importance.
The Olympians argued that the
placement of Samsung’s logo
prominently displayed throughout the
app demonstrated Samsung’s intent
that the app was purely commercial
speech designed to drive sales of
Samsung products and to increase
Samsung’s brand awareness.
DECISION
In dismissing the Olympians’ lawsuit,
the California court found that the
Genome Project app did not propose
a commercial transaction and did
not promote any particular product.
The court held that Samsung’s
placement of its mark on the app’s
pages was not sufficient to show that
a commercial transaction was being
proposed by the Genome Project. In
addition, even if it did, the court found
that the commercial message was
“intertwined and overwhelmed” by
the non-commercial aspects of the
message. The court explained that
the app was a fun way for Facebook
users to learn about their personal
connections to Olympic athletes and
was only using information that was
already publicly available. Regarding
Samsung’s creation of the compilation
that made available to Facebook users
the Olympic athletes’ biographical
information, the court agreed with
Samsung that just because it was
a corporation, did not mean that its
message concerning the Olympians
was necessarily commercial speech.
The attorney for the Olympic athletes
has indicated that the athletes intend
to appeal the court’s decision.
FOR MORE INFORMATION
Marc J. Rachman
Partner
212.468.4890
mrachman@dglaw.com
Dominick R. Cromartie
Associate
212.468.4837
dcromartie@dglaw.com
or the D&G attorney with whom you
have regular contact.
Davis & Gilbert LLP
T: 212.468.4800
1740 Broadway, New York, NY 10019
www.dglaw.com
© 2013 Davis & Gilbert LLP