In Digital Marketing, Forgiveness is Expensive

Forgiveness Can Be Way More Expensive Than Permission: Celebrities & Your Marketing


A recent court decision can have a significant impact on the way you use celebrity names or images in your marketing efforts. Richard Young and Matthew T. Ingersoll, of Quarles & Brady, explain the basics in this article in Entrepreneur. Here’s the down and dirty version, just in case you’re in a hurry:

Michael Jordan was inducted into the Basketball Hall of Fame in 2009. Sports Illustrated did a special issue commemorating the event. All advertisers, including Jewel Stores, were required to play on words or design that is specific to Michael Jordan. Jewel Stores did that, creating an ad that had no commercial messaging except for Jewel’s tagline – but they left out one vital step. They never got Michael Jordan’s permission to use his name. Jordan was mad, and sued for $5 million.

Free Speech Protections Do Not Extend to Commercial Speech

As individuals, the leadership of Jewel Stores can congratulate Michael Jordan all they want on his accomplishment. They have every right to talk about Michael Jordan, to share their opinions on his elevation to the Hall of Fame, to praise or critique him: all of these activities are protected by the First Amendment.

However, there are limits on commercial speech. Jewel Stores, as an entity, aren’t entitled to the same free speech protections that their owners, as individuals, are. Even though the ad contained no explicit commercial messaging, the court ruled that it still ‘counts’ as an ad, and as such, Michael Jordan’s case that his permission needed to be obtained and that he may be entitled to some compensation has merit.

What This Means For You

Celebrities occupy an interesting space in our culture. People are fascinated by the lives, accomplishments, and misdeeds of the famous, and they talk about what fascinates them. As marketers, this is obviously appealing to us: the best place for our brand to be is in the middle of conversations our customers are already having.

However, we need to proceed with caution. This case is a reminder that our businesses don’t enjoy the protections of free speech to the same extent that we, as individuals, do. While there’s a certain school of thought that it’s always easier to get forgiveness than permission, it’s important to be aware that forgiveness can come with a hefty price tag where the images and names of celebrities are involved. Keep that in mind as you construct your traditional and digital advertising!

Additionally, the congratulatory campaigns, such as Sports Illustrated created that got Jewel Stores into so much trouble, are incredibly common. Not only are traditional celebrities, such as athletes and actors, featured in these campaigns, but you’ll often see industry movers and shakers featured this way in B2B publications. Before you sign on, make sure the person being celebrated has given explicit permission for you to use their name or image or have your creative team design advertising that accomplishes your goals without using the individual’s name or image! That’s the safest way to protect yourself from litigation.

Need help determining what type of advertising your brand should (or shouldn’t!) be doing? Give us a call. As a full-service agency, we help companies just like yours spread your brand messaging effectively and efficiently through many channels, including social media, video, print and more!

Forgiveness Can Be Way More Expensive Than Permission: Celebrities & Your Marketing
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Forgiveness Can Be Way More Expensive Than Permission: Celebrities & Your Marketing
Using celebrity names and photos in your marketing often engages your customers, but it can come with costly litigation.

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