LITIGATIONINTELLECTUAL PROPERTY >> ALERT

OLYMPIANS’ RIGHT OF PUBLICITY CLAIMS OVER A FACEBOOK APP TRUMPED BY FIRST AMENDMENTA 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

was protected speech under the First Amendment.

BACKGROUNDTo 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

FEBRUARY 2013

Attorney Advertising1146

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.

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FEBRUARY 2013

LITIGATIONINTELLECTUAL PROPERTY

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.

DECISIONIn 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 LLPT: 212.468.48001740 Broadway, New York, NY 10019www.dglaw.com

© 2013 Davis & Gilbert LLP