Ariana Grande Sues Forever 21 over Social Media Posts
Last week pop sensation Ariana Grande filed a lawsuit against Forever 21 for violation of both her statutory and common law right of publicity under California law, as well as for trademark infringement and false endorsement under the Lanham Act, and a copyright infringement claim. The claims arise out of the use of Grande's identity in social media posts by the fashion company. (Note the complaint and exhibits are all accessible below.)
As I told the New York Times, “it seems like there was a targeted effort by Forever 21 to use Ariana Grande’s identity in a way that might be likely to confuse consumers,” as to Grande’s participation and approval of a promotional campaign. Some of the uses could suggest to those who saw Forever 21’s social media posts that Grande had participated in an overall promotional campaign. Such confusion could form the basis of Lanham Act claims, and also make the right of publicity claims--which do not turn on such confusion--more likely to withstand a First Amendment defense.
Forever 21's posts allegedly appeared after a purported deal fell through with Grande to promote the brand on her Instagram feed. Forever 21 apparently would not pay Grande’s requested fee. In her complaint Grande alleges that she regularly receives six figure payouts for her endorsements and promotions on social media.
Without a complete sense of Forever 21’s regular social media posts it is difficult for me to fully assess the legitimacy of all of Grande’s claims. For example, her case would be weaker if Forever 21 regularly posted comments about different celebrities periodically, as do many people on their Instagram and Twitter feeds, such that consumers would not think she endorsed the uses. It would also make a First Amendment defense stronger for Forever 21 because the company’s Instagram feed would appear more like news reporting and less like a calculated effort to use Grande to promote its brand and products.
Although right of publicity claims do not turn on the demonstration of consumer confusion, First Amendment defenses are more likely to apply to posts that are not likely to cause confusion here as to sponsorship or participation. The mere use of Grande’s name in posts, the company’s reposting of Grande’s own social media posts, or reporting on Grande’s activities on their own are more likely to be allowed by the First Amendment in the absence of such confusion.
Grande’s complaint that Forever 21 used a look-alike model is also more likely to succeed if rooted in an effort to deceive consumers, than the mere use of a style that might make consumers think of Grande. As I told the Times, Grande should not be able to monopolize various hair styles, fashion trends, or accessories. Although case law is replete with examples of liability for using look-alikes, simply evoking Grande or a style she made popular should not be enough to qualify as using her identity, and to the extent it does, the First Amendment should bar liability for style-only based claims. To the extent that viewers would think the so-called “look-alike” is Grande that is a different matter, and could form the basis of liability. I note that it is no surprise that others are claiming on social media that Grande actually stole their fashion style (e.g., Instagram user, Farrah Moan)--which only highlights the problems of allowing such claims.
Although the 9th Circuit’s decision in White v. Samsung allowed liability for the mere evocation of the game show celebrity Vanna White’s identity—by showing a robot with a blonde wig on the Wheel of Fortune set—the decision has been much-criticized, including by me, and should certainly not extend to ownership of fashion trends and styles. (I also note that White was decided by a federal court interpreting state common law. California courts can require the use of a person’s identity, not its mere evocation before liability attaches.) I note that the broad reading of what it means to use another’s identity from White likely doesn’t matter for Grande’s case as some of the Forever 21 posts may indeed confuse viewers as to Grande’s participation, and were clearly suggesting a connection with Grande and her 7 rings video. See, e.g.,:
Even if Forever 21 overstepped what is allowable, this case is part of a growing series of suits by celebrities over uses of their identities on social media, and especially questions of liability for reposts, retweets. The question of how much for-profit companies can engage in the pervasive celebrity-based conversations on various social media platforms remains an open one. (See, e.g., Heigl’s suit over Duane Reade tweet)
These cases will continue to be litigated, so it’s worth highlighting a few thoughts on the matter raised by this case, and the likely uses on social media. It may help to think of these in categories:
1) News Reporting Genre. Companies should be able to accurately report—much as newspapers can—what public figures are doing and wearing, as does the New York Times Style section, US Weekly, and Vogue. So posts about what is popular on the red carpet or runway this year that include references to and images of celebrities should be protected speech. For example, if Forever 21, wants to show a picture of Grande at the Grammy’s wearing a pink dress (along with other celebrities) suggesting that pink is a popular color this year, that should be protected by the First Amendment.
2) Reporting Plus Specific Promotion: A closer call, but one that is still likely protected by the First Amendment is to suggest that if you like the fashion a celebrity is wearing, the company sells something similar. In fact, many magazines specifically point to places where you can buy similar clothes to what your favorite celebrity is wearing. This has long been considered fair, and serves an important goal of commercial speech—providing useful information to consumers. The Grande lawsuit provides some examples of this, such as:
Similarly, a company should be able to accurately report on social media that a celebrity is wearing an item it sells, or visited its restaurant—particularly if it clarifies that there is no connection or relationship between the company and the celebrity.
3) Participation in Celebrity Culture. Also likely acceptable is the ability of social media accounts to share in the public dialogue about celebrities. For example, companies should be able to celebrate record releases, nuptials, and music awards of public figures like Grande unless they embark on a broader campaign to use one particular person’s identity—as may have been the case with Grande—or to cause confusion as to her participation or endorsement, or if the use is targeted to promotion of a particular product. Broader comments on celebrities are more akin to the famous New Kids on the Block polls held fair in the context of Lanham Act claims; the right of publicity should not be able to circumvent such speech-protective holdings by making a company liable for any reference to a popular figure about which many are already posting and tweeting.
4) Retweets, Likes, and Reposts. Much as fans can retweet, like, and repost celebrities’ social media posts, for-profit companies should have some latitude to do the same on their sites. Some reposts and retweets may overstep what is acceptable by actively using another to promote a specific product, but the mere fact of retweeting and reposting should not be enough for liability.
Even though Grande’s suit on first glance looks like it has a good chance of succeeding, Forever 21 recently declared bankruptcy which may make a monetary recovery more challenging.
This lawsuit, however, was likely not about money. Instead, Grande likely wanted to protect her Instagram endorsements and set clear standards about how others could use her identity on social media. Such standards are not likely to be set in this case, and will likely remain uncertain for some time to come as courts wrestle with the types of uses outlined above, and the scope of First Amendment defenses in the context of hybrid commercial and noncommercial speech on social media.
THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World
This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.