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Each person is on a journey to find their own identity. Identity includes the distinguishing characters of an individual. However, identity is not restricted to individuals only but is also an important characteristic for brands. In some cases, an individual becomes its own brand and develops a brand identity. Through identity brands develop individuality which sets them aside from the competition. Brand identity allows the brand to become more than a place of business and differentiates it for their original, unique and distinctive characteristics. Furthermore, brands with strong following have developed powerful identities that enable consumers to invest monetarily and emotionally with the brand. A brands identity has a direct effect on the profitability of the brand itself.
When a brand's identity is threatened, the brands reputation is also threatened. Brand "reputation is seen as the outcome of a competitive process in which firms signal their essential characteristics to constituents to maximize social status. The cumulative judgment by the public over time provides the company with significant competitive advantages." As a result, brand reputation is a driver for successful relationships between the brand and key publics which in turn has a direct impact on business performance.
Publicists assist in building and maintaining the brand reputation of organizations or public personalities. Additionally, publicists are in charge of managing the identity andpositively utilizing it to benefit the brand. Publicists must protect their clients name, likeness or identity from unauthorized use and false statements. It's very easy for one false statement to severely damage a brands identity and as a consequence create a public relations crisis that could negatively affect profitability.A public organization or personality highly depends financially on their brand identity and reputation, therefore, it's of the utmost importance to protect their right to publicity and false light.
Right of publicity is "the right to control the commercial use of one's identity" and is a branch of privacy. This right protects individuals when an entity commercially benefits from the unauthorized use of their identity. Although the right of publicity mainly applies to individuals as opposed to organizations, it's an important component when protecting public personalities that have developed a brand around their identity. The right of publicity is a state by state law. "In some states the right of publicity is only applicable to a celebrity or public personality, there are other states where the right of publicity applies to any individual." Other states require the individuals identity to have previous public value, which means they have previously commercially exploited their own identity. In addition, states have different regulations on the longevity of the protections provided by the right of publicity after death.
Five elements must be proved in a court of law: (1) use of plaintiff s name, likeness or identity, (2) not in connection with news or public affairs, (3) without plaintiff s permission, (4) for defendant's commercial purpose and (5) plaintiff is hanned. Each element was set in place to protect individuals without threatening the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." It's essential to note that the right of publicity is a protection against those taking advantage of others identities for commercial use and was not meant to threaten the First Amendment.
The first element presented by the right of publicity is the "use of plaintiff s name, likeness or identity." To prove this element, the name of the individual is not always necessarily used. As long as their likeness (representation) or identity are used, the element can be proved. In accordance to this element, the court must establish whether the individual is a public personalityor celebrity. Most of the cases involving right of publicity also involve a celebrity because their name, likeness and identity already provide commercial success and other entities want to take advantage of it.
The following element is "not in connection with news or public affairs," meaning the name, likeness or identity was not newsworthy. Courts typically "have taken an expansive view of newsworthiness, giving deference to the news media in order to encourage speech." This element clearly distinguishes the limit between right of publicity and the First Amendment— the public did not benefit in any shape or form from the use of an individual's name, likeness or identity. In connection to this element, the third element succinctly establishes the plaintiff (individual whose names was utilized) did not authorize the use of their name. For a news story an individual does not need to give permission for the use of their name because that would restrict the First Amendment and regulate the truth. However, when the individual is not used in connection to news or public affairs, permission must be granted beforehand.
The intention behind the use of name, likeness or identity is further examined in the fourth element. If it has been used "for defendant's commercial purpose" without previous authorization, then the individual is protected under the right of publicity. In addition, the last element must prove the "plaintiff is harmed" to be protected under the right of publicity.
The case of Abdul-Jabbar v General Motors Corporation (1996) exemplifies the importance of the right of publicity. GMC aired a car commercial in which Abdul's birth name, Ferdinand Lewis ("Lew") Alcindor, was used as the answer to a trivia question. Abdul did not give consent to use his former name and did not receive any financial compensation from GMC. The United States Court of Appeals Ninth Circuit stated that the right of publicity is not limited to the appropriation of name and likeness but also to identity. Additionally, the commercial wasof economic value for GMC and was not newsworthy.This case serves as an example of the importance of identity and the clear need for its protection. In this scenario it was a public personality trying to protect their personal identity, as well as the brand identity he had created for himself as a professional basketball player.
The tort of false light is also a branch of privacy and occurs when a publication represents plaintiff in a false light. Similar to defamation, false light is a consequence of false information being spread in a publication. However, "defamation protects a person's public reputation while false light remedies the victim of a false statement for his or her emotional distress." Another difference is that false light does not require false statements, as long as the publication contains false implications. Since defamation is similar to false light, multiple states do not recognize false light. Five elements must be proved in a court of law: (1) a publication, (2) that showed plaintiff in a false light, (3) highly offensive to a reasonable person, (4) with knowledge of or reckless disregard of the falsity and (5) that caused harm.
Unlike defamation, false light requires for the statement/implications to be published. A false statement that has not been published and was simply spoken is not protected under the tort. In accordance to the second element "that showed plaintiff in a false light," the published material may contain truthful information but ultimately depicts the plaintiff in a false light. Additionally, the published material must be proven to be "highly offensive to a reasonable person" meaning if it personally offends the plaintiff but is not offensive to a reasonable person the published material is protected under the First Amendment. The law does not protect personal feelings but it does protect against highly offensive material to a reasonable person.
The fourth element is actual malice— "with knowledge of or reckless disregard of the falsity." Actual malice is key to both false light and defamation because it proves the materialwas ill-willed as opposed to an innocent mistake. This element is particularly important in the differentiation between false light and the First Amendment because it protects the media from potential censorship and enables them to speak the truth even when it's offensive to certain individuals. The final element must prove the statement/implication caused harm to the plaintiff.
False light is harder to prove in a court of law than right of publicity.Time v. Hill(1967) is a notorious case that demonstrates the difficulty of proving false light. The Hill family was held hostage by three escaped convicts in their own home. After the incident, the family clearly stated the convicts were not violent. Years later Life Magazine released an article alluding to the Hill family being a source of inspiration for the new Broadway play "The Desperate Hours." The article included images depicting the crimes as described by the play in the Hill's old home where the crime had actually taken place. The images implied the play had been inspired by the actual crime. Hill sought damages because the pictures, which depicted violent scenes, were false and untrue. However, he failed to prove actual malice so false light was not proven. This case exemplifies the difficulty of proving false light to a court of law and demonstrates how an identity can be damaged by misleading implications.
A very important aspect of public relations is conflict managing. Typically, when a brand finds itself in the midst of a conflict the brand identity and reputation are being threatened. A "good reputation is created and destroyed by everything an organization does, from the way it manages employees to the way it handles conflicts with outside constituents." Both the right of publicity and false light aim to protect brand identity and reputation. Unfortunately, even if defendants are granted right of publicity or false light the damage has already been done. As soon as a key public hears the false information or implications, the brand is already guilty intheir minds. Additionally, proving right of publicity and false light in a court of law is a longer process than some reputations can withstand.
Publicists must not only protect reputation but also restore it. There are five main responses a brand evokes when their reputation is being threatened: denial, evade responsibility, reduce offensiveness, correction and mortification (apology), Depending on each case, there is an appropriate response that will allow a brand to work towards recovering their reputation. However, denial is the most common response in right of publicity or false light suits. Denial occurs when the brand is not responsible for a conflict or wants to shift the blame elsewhere. This response would likely occur during a right of publicity or false light suit when the brand is not at fault and wants the responsible party to accept full responsibility.
No matter what the outcome of the suit is, the brand must recognize the conflict directly affected their key publics and stakeholders (investors, customers, fans) and they should apologize. "An effective apology has three key components: taking responsibility for your role in a situation or event, and expressing regret; asking forgiveness; and promising it won't happen again." 'When a brand's name, likeness and identity is depicted falsely they must remind the key publics and stakeholders during the apology that although the brand is apologetic they are still not at fault. "Acknowledging the issue, but making it clear that the situation was an accident or the result of a decision with unintended consequences." Publicists must correctly frame and tailor the message to develop a sincere apology accepting the brand's responsibility in the issue while asserting where the blame lies.
Throughout their careers, publicists will continuously need their clients to apologize regardless of their rote in a conflict. It's essential for publicists to understand when conflict management needs to involve the law. Sometimes a simple press release will suffice but othertimes, publicists must seek legal assistance to protect their clients. Right of publicity and false light are two important branches of privacy that every publicist must understand to successfully manage clients name, likeness, identity and reputation. It's their role to defend clients against false statements or implications that threaten the identities and reputations they have worked so hard to create.
Monica Avilais a student in Jon Pfeiffer's Media Law class at Pepperdine University. The class covers copyright and social media. Monica is a Public Relations and Multimedia Design major.
Pfeiffer Law Corp is an entertainment law firm based in Santa Monica, California.
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