Celebrity endorsements can be a powerful tool to strengthen a brand’s reputation and recognition with consumers. However, trying to steal or borrow a celebrity’s limelight without permission can be a costly mistake, as an aged-care company that used Ita Buttrose’s image recently discovered.
The media doyenne and former Australian of the Year last year sued The Senior’s Choice and its director Andrew Philpot, arguing that they illegally used her image and content from an ABC interview on their website and SEEK page to promote their business. Ms Buttrose, the National President of Alzheimer’s Australia, claimed that she suffered loss “to her very substantial and reputable” public standing after The Senior’s Choice failed to pay her $75,000 endorsement fee.
In the Federal Circuit Court, Judge Jones found that Senior’s Choice had no prospect of defending their claim and that the conduct constituted misleading and deceptive conduct under s.18(1) and s.29(1) of the Australian Consumer Law, as well as copyright infringement and passing off. Senior’s Choice was required to pay Ms Buttrose’s legal fees, which were rather extensive (Buttrose & Anor v The Senior’s Choice (Australia) Pty Ltd & Anor  FCCA 2050).
Philpot said that The Senior’s Choice had been “steamrolled” by the decision, and suffered a significant financial loss from a mistake they claim was unintentional. The decision stands as a strong warning about the risks of linking brands to celebrities without their permission.
Other celebrity cases:
There are many examples of brands or companies getting into trouble for claiming that they have an affiliation with a particular celebrity or using images of celebrities without permission.
Famous legal examples include Hogan v Koala Dundee Pty Ltd (1988) 83 ALR 187, which involved a company registered as ‘Koala Dundee Pty Ltd,’ deriving their name from the hugely popular film ‘Crocodile Dundee’. The company used the name ‘Dundee’ and an image of a koala wearing a bush hat and sleeveless vest, and holding a knife similar to Paul Hogan’s character in the famous films. The judge held the range of merchandise was “strongly reminiscent of Hogan’s role in the film” and that Koala Dundee passed it off as being in connection with Crocodile Dundee when no such association existed. The company was ordered to cease using the name immediately.
Another well-known example involved the prominent rugby player Andrew Ettinghausen, who brought a defamation action against Australian Consolidated Press (ACP) for publishing explicit nude photos of him without permission. ACP-owned magazine GQ obtained images of Ettinghausen showering the dressing rooms, taken by a cameraman with backstage access, which showed Ettinghausen’s genitalia. Without his knowledge or approval, GQ published the photos, alongside text which implied that the publisher had obtained permission to take the photographs of his genitalia for the purpose of widespread distribution. A jury found ACP guilty of defamation and Mr Ettinghausen was awarded $250,000 in damages. (Ettingshausen v Australian Consolidated Press Limited  NSWSC 176 (28 December 1995).
Earlier this year actress Katherine Heigl sued a New York pharmacy chain who retweeted a photo of her carrying shopping bags with the pharmacy’s logo on them. Duane Reade’s tweet read: “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favourite drugstore” with the paparazzi’s image attached. Ms Heigl sought $6 million in compensatory and punitive damages for the use of her image in an advertisement without her permission. In August the two parties came to a mutual, confidential agreement which reportedly required Duane Reade to donate to a charity founded by Ms Heigl.
Lessons for advertisers
Star power can put your brand firmly in the spotlight, but as the above examples (and many others!) demonstrate, brands that use celebrities or their images without permission expose themselves to a wide variety of legal risks.
In particular, brands should be aware of the risk of misleading and deceptive conduct and the tort of passing off. While for the majority of people the simple use of their image in connection with a brand or product is unlikely to be misleading or deceptive, where the person is a celebrity or a well-known endorser of products, falsely suggesting that they have endorsed a brand or product or that there is a connection that does not actually exist has the potential to land advertisers in hot water.
Brands should also be aware of the copyright issues that may arise if an image of a celebrity is used without the permission of the copyright owner, while actions for defamation may be available to celebrities if a brand’s use of their image or likeness exposes them to hatred, contempt or ridicule, causes them to be shunned or lowers the public’s opinion of them.
Using celebrities in advertising can be a legal minefield, so if in doubt make sure you get the proper legal advice so you can keep the spotlight on your brand for the right reasons.