Of All The Coats, In All The Scenes, In All The Films: Burberry Threatened Over Humphrey Bogart Publicity Rights

from the this-could-be-the-beginning-of-a-beautiful-lawsuit dept

One of the cooler features of Facebook's Timeline for businesses is the ability to go back and fill in milestones and events over the years. Some companies have long and very interesting histories, and for them a historical timeline is the perfect opportunity to engage in advertising-as-content. This is clearly what famed luxury brand Burberry was trying to do when they filled out their timeline with vintage advertisements and examples of Burberry's role in fashion and culture—including an image from Casablanca of Humphrey Bogart wearing a Burberry coat. Naturally it wasn't long before they started receiving legal threats from the company that controls Bogart's publicity rights and the trademarks associated with his name—but Burberry is fighting back. PaidContent reports that they have filed for declaratory judgment that their use of the image is not infringing.

As the filing (embedded below) asserts, Burberry's use of the image is legitimate in every way and clearly protected by the First Amendment. The company is simply showcasing a factual, historical example of an important use of the brand, and there is no reasonable alternative way they could convey the same information. Even in terms of copyright, Burberry would have a strong fair use argument—but the company actually obtained the necessary copyright licenses for the image, so that's not even an issue. In terms of trademarks and publicity rights, the infringement claim is even more spurious: the use of the image in no way implies personal endorsement or any commercial connection to Bogart. The only implied endorsement is that a Burberry coat was part of an iconic outfit from an iconic movie—and that's a plain and simple fact that anyone is free to report. Using a single frame from a film to demonstrate that fact is a clear-cut case of free speech, regardless of any rights that may be attached to the image or the celebrities therein.

We've noted before that publicity rights are new and kind of scary. In some ways they make the same kind of sense as trademarks: it's in the best interest of both companies and the consumer that brands can't misrepresent celebrities as endorsing their products when they actually don't, just as we don't want brands unfairly capitalizing on each others' goodwill. But, just like trademarks and every other form of intellectual property, publicity rights are breeding an ownership mentality where people think they can control any and all uses of something. These threats against Burberry are a prime example of that—and hopefully the judge grants them their declaratory judgment and sends a clear message that publicity rights do not supersede freedom of speech.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    :Lobo Santo (profile), May 4th, 2012 @ 11:58am

    They remade Casablanca?

    I preferred the version with Myra Binglebat and Peter Beardsley...

    "Of all the space bars in all the worlds, you had to re-materialise in mine."

     

    reply to this | link to this | view in thread ]

  2.  
    icon
    gorehound (profile), May 4th, 2012 @ 12:10pm

    In Big Business nowadays it is a sue first Climate.
    I for one am fed up with it.
    How about you guys ?

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    BentFranklin (profile), May 4th, 2012 @ 12:20pm

    Perhaps publicity rights should be life of celebrity + 0 years. Why should Fred Astaire's descendants get to decide whether he would have endorsed a particular vacuum cleaner? They don't care about his legacy, they are just riding the gravy train.

     

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  4.  
    identicon
    TDR, May 4th, 2012 @ 12:20pm

    Re: They remade Casablanca?

    +1 for being a fellow Dwarfer :D

    And on topic, to put it in Bogart's manner of speaking, "IP's gotta go, schweethaht."

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, May 4th, 2012 @ 12:28pm

    I wonder if Burberry could claim the Bogart publicity rights company doesn't have permission to publicize any photos showing Bogart with it's Burberry coat?

     

    reply to this | link to this | view in thread ]

  6.  
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    Baldaur Regis (profile), May 4th, 2012 @ 12:40pm

    bref commentaire...

    ...huzzah for pushback!

    And - reading about this makes me want to get a Burberry.

     

    reply to this | link to this | view in thread ]

  7.  
    icon
    Baldaur Regis (profile), May 4th, 2012 @ 12:43pm

    Re:

    ...or, in these cases, the icky corpse train.

     

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  8.  
    identicon
    MrWilson, May 4th, 2012 @ 12:43pm

    Re:

    Now that's just silly. The unspoken rule is clearly that whoever has the more profitable commodity to license gets legal preference. People who have never heard of Burberry have heard of Bogie, therefore Burberry should have to pay retroactively for Bogie wearing their product as free advertising!

     

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  9.  
    identicon
    Anonymous Coward, May 4th, 2012 @ 12:48pm

    I don't see the pic on their timeline... removed it anyway?

     

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  10.  
    identicon
    Jay, May 4th, 2012 @ 1:17pm

    Burberry

    Too bad it wasn't a Louis Vitton coat

     

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  11.  
    identicon
    Anonymous Coward, May 4th, 2012 @ 1:44pm

    Re: They remade Casablanca?

    I gotta give you props for the Dwarf refernce! Kuddo's

    So whos going to sue for it :)

     

    reply to this | link to this | view in thread ]

  12.  
    icon
    Atkray (profile), May 4th, 2012 @ 2:12pm

    Re: Burberry

    Will a moderator please remove the above comment before Techdirt gets sued.

     

    reply to this | link to this | view in thread ]

  13.  
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    Almost Anonymous (profile), May 4th, 2012 @ 2:14pm

    Like the fashion industry has never done this...

    Naturally it wasn't long before they started receiving legal threats from the company that controls Bogart's publicity rights and the trademarks associated with his nameóbut Burberry is fighting back.
    What if the situation were reversed? Who believes that Burberry would have raised a stink if Bogart's people had made some special notice of the fact that he wore a Burberry coat in the movie? I'm looking at you, LV!

     

    reply to this | link to this | view in thread ]

  14.  
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    Almost Anonymous (profile), May 4th, 2012 @ 2:15pm

    Re: Burberry

    Yeah, Louis would be suing people just for watching the movie!

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Digitari, May 4th, 2012 @ 2:16pm

    Re: Burberry

    Louis Vitton? what movie did he star in?

     

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  16.  
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    ChurchHatesTucker (profile), May 4th, 2012 @ 2:36pm

    Re: Re:

    We need a new Habeus Corpus. If you claim to speak for someone, you should be able to produce them.

     

    reply to this | link to this | view in thread ]

  17.  
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    Baldaur Regis (profile), May 4th, 2012 @ 3:01pm

    Re: Re: Burberry

    "Derivative Hacks: The Tommy Hilfiger Story". LV has a cameo in the hilarious basketball scene.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Digitari, May 4th, 2012 @ 6:12pm

    Re: Re: Re: Burberry

    so he "starred" in it? (reading is FUNdamental)

     

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  19.  
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    G Thompson (profile), May 5th, 2012 @ 12:57am

    Re: Re: Re:

    Wouldn't that be Rancidus Corpus?

     

    reply to this | link to this | view in thread ]

  20.  
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    G Thompson (profile), May 5th, 2012 @ 12:59am

    Re: Re:

    So on that logic the Bogart estate needs to pay the tobacco companies for smoking there products ;)

     

    reply to this | link to this | view in thread ]

  21.  
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    Mike Masnick (profile), May 5th, 2012 @ 1:13am

    Re:

    Perhaps publicity rights should be life of celebrity + 0 years.

    To be clear that IS the case with most publicity rights laws. The majority of them do not confer any rights after death. There are just a few states whose publicity rights laws do allow the rights to live on after death.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    MrWilson, May 5th, 2012 @ 12:46pm

    Re: Re: Re:

    It could be argued that his lung cancer-induced death did increase the value of his celebrity status by decreasing the available supply, so yes, in that light, the Bogart estate should be paying the tobacco companies.

    Unfortunately, by the same logic, the Hemingway estate should be paying Abercrombie and Fitch for selling Ernest the gun with which he shot himself...

     

    reply to this | link to this | view in thread ]

  23.  
    icon
    G Thompson (profile), May 5th, 2012 @ 9:53pm

    Re: Re: Re: Re:

    Therefore all celebrities need to pay the community for publicity rights!

    Cool! I propose a Publicity tax.. The more publicity you require the more tax you pay..

    What? you are all against it? But why? Can't you see the absolute good it will ensure by bankrupting the likes of the Kardashians and Snooky's of the world..

    That can only be a good thing! ;)

     

    reply to this | link to this | view in thread ]


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