Since trademark rights prevail nationwide under the federal Lanham Act and rights of publicity do not vest in all circumstances, influencers are well advised to file trademark applications for their services
An influencer is defined as "one who exerts influence: a person who inspires or guides the actions of others often, specifically: a person who is able to generate interest in something (such as a consumer product) by posting about it on social media."1 According to a recent study, 17 percent of children ages 11-16 want to be a social media influencer when they grow up, outranking teacher and veterinarian.2 Who can blame them? Some of the more popular social media influencers such as Kylie Jenner, an influencer with 149 million Instagram followers—an audience larger than the population of all but the world's eight most populous countries—can earn as much as $1 million from a single sponsored post. 3 That's right: $1 million per post.
Since an influencer can "generate interest" by merely posting on social media, a successful influencer then generates such interest usually by selling more products, driving more people to an event, and convincing other people to donate to a group. As such, the influencer needs a platform to easily communicate his or her message to a significant number of people. Of course, the platform is the Internet and the audience is an estimated 40 percent of the entire world. 4
Having a platform and an audience, the influencer now needs a hook, a reason for fans to buy more products, go to that music festival, or donate to the influencer's cause. Often, that hook is fame, i.e., the state of being recognized. The influencer's "influence" is based on the public's ability to recognize his or her name, image, or likeness. Generally, the more public recognition, the more influence, and because the Internet provides an enormous immediate audience, fame is now attainable in ways not possible 30 years ago.
Famous people, including movie stars, athletes, and musicians, are inherently influencers. A number of the top 10 influencers neatly fall within one of these categories. Selena Gomez, the second highest paid influencer, 5 is a musician turned movie star. Cristiano Ronaldo, the third highest paid influencer, 6 is a world famous soccer player. Beyoncé Knowles, the fourth highest paid influencer, 7 is a famous pop musician, and Dwayne "The Rock" Johnson is not only the sixth highest paid influencer8 but also the highest paid movie star in the world. 9
What about spots one and five? They belong to a pair of sisters: Kylie Jenner and Kim Kardashian, respectively, who are part of a new breed of influencers.10 Whereas The Rock became an influencer after first becoming a movie star, and Beyoncé was a singer long before she was ever one of the queens of Instagram, Kylie Jenner became famous as an influencer first ("famous for being famous"), and then leveraged that fame into other markets such as beauty and makeup supplies.
One need not be a marketing juggernaut to earn a respectable living as an influencer. According to Forbes Magazine, an Instagram user with 100,000 followers can command $5,000 for a single post made in partnership with a company or brand. 11 Influencers with a base of a million followers can command $50,000, while the seven million-plus follower club can expect $150,000 per post. These posts, while undoubtedly requiring some level of creativity, skill, and other professional hair, lighting, makeup, and photography, hardly involve the effort of shooting a television commercial, let alone a movie. Instagram posts are usually just single photos or a series of related photos.
Rights of Publicity and Trademarks
It is evident that fame—even, or particularly, "Internet fame"—sells, and that this fame is lucrative, which begs the question, "How can fame be legally protected?" Influencers primarily can take advantage of two different avenues to protect their name, image, and likeness: 1) via their rights of publicity and 2) via trademark rights
The right of publicity generally protects the economic value, or "drawing power," of one's name, image, or likeness. Each person has a right of publicity, but such right for famous people, who are more publicly recognizable, has more value. Therefore, a third party using such right without permission could result in a claim for misappropriation of the right of publicity with significant monetary ramifications. Notably, there is no federal right of publicity statute, although some version of the right of publicity is recognized in 35 states (22 by statute and 11 by common law). 12
A trademark is a word, name, or symbol used to identify and distinguish the goods or services of one party from the goods and services of another party and to indicate the source of the goods. There is a federal trademark statute protecting trademark rights, and trademarks may be registered with the U.S. Patent and Trademark Office (USPTO). Famous, i.e., well-recognized, brand names such as COCA-COLA, ROLEX, and GOOGLE are registered trademarks, and each mark likely immediately conjures a mental image that one associates with the products and services offered by each company. Personal names of a living person, such as Peyton Manning and Beyoncé, can be registered as trademarks if the person consents and if the public associates that name with the goods or services provided in connection with the name.
The right of publicity is the right that a person has to control his or her likeness (i.e. name, signature, image) when used for commercial purposes. Unlike trademark law that is codified in the federal Lanham Act13 as well as a wide variety of state registration systems, rights of publicity laws are state-specific, and can vary wildly from state to state, both in what rights are protected and the duration of the protection. Some states, like Delaware and Colorado, do not even recognize a right of publicity.
Rights of publicity have a number of advantages over trademark rights. Individuals inherently have such rights where they are recognized and will continue to have them for the term provided by law. In order for one to acquire a valid and protectable trademark, he or she must be using that mark for a particular good or service. One cannot simply "squat" on a trademark to keep others from using the mark. Failure to make ongoing use of a mark by the trademark owner in connection with the particular good or service can result in abandonment of the mark. 14
Similarly, trademarks are narrower in scope than a right of publicity. Under trademark law, someone can only prevent third-party use of a trademark on the same or related goods to those on which the owner of the mark is currently using the mark. For example, Tiger Woods has a trademark registration for "TIGER WOODS" for "entertainment in the nature of competitions in the field of golf; entertainment services, namely, personal appearances by a sports celebrity; providing a website on a global computer network featuring information about appearances, accomplishments, exploits and biography of a professional golfer." With this registration, Tiger Woods could easily prevent a third party from creating the Tiger Woods golf tournament without his authorization. However, he might not be able to use this trademark registration to prevent Cadillac from branding one of its models of cars the "Tiger Woods" or using his image in television commercials for a car.
His rights of publicity, however, could do exactly that. Such rights prevent use of a third party's likeness for commercial purposes regardless of whether the person had used his likeness in relation to a particular commercial purpose, which is a significantly broader protection than trademark rights offer in this respect.
California Rights of Publicity
The right of publicity in California is codified in California Civil Code Section 3344. It protects against the unauthorized use of another's "name, voice, signature, photography or likeness" on products or merchandise for the purpose of advertising or promotion.15 The unauthorized use must be "knowing."16 California also has a descendible postmortem right that lasts for the same duration as copyright: the lifetime of the person plus 70 years. 17 The owner of a postmortem right of publicity must register that right with the California secretary of state and cannot recover damages for acts of infringement that occurred prior to registration. 18
In a right of publicity law suit, the prevailing plaintiff is entitled to his or her actual damages or $750 dollars (whichever is greater) and the profits resulting from the unauthorized use. 19 Punitive damages and equitable relief may also be awarded, along with the potential for an award of attorney's fees. 20
Despite the strength and longevity of the California right of publicity statute, there are also a number of codified defenses. For example, when the cause of action arises from the use of a plaintiff's likeness as part of an image or motion picture, that person must be individually identifiable by the naked eye from that image or motion picture. 21 If they are simply one of a number of people in a crowd, no cause of action exists.
When the plaintiff is an employee of the defendant and a photograph or likeness of the plaintiff is only incidental and not essential to the purpose of the publication in which it appears, there is a rebuttable presumption that the use was not a "knowing" use of the employee's photograph or likeness. 22
Use of a likeness in connection with any news, public affairs, sports broadcast, or political campaign does not require consent. 23
The statue also protects the owners and employees of a broadcast medium, such as a newspaper, radio station, television station, and magazine publisher from liability for an advertisement that infringes a third party's right of publicity, unless the owner or employee had knowledge of the unauthorized use of the person's right of publicity. 24
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1. MERRIAM-WEBSTER UNABRIDGED DICTIONARY, available at https://www.merriam-webster.com/dictionary /influencer.
2. Paul Skeldon, Young affiliates: Nearly a fifth of British children aspire to be social media influencers, Telemedia Online (Jan. 31, 2019), https://www .telemediaonline.co.uk/young-affiliates-nearly-a-fifth-of -british-children-aspire-to-be-social-media-influencers
3. Zameena Mejia, Kylie Jenner Reportedly Makes $1 Million per Paid Instagram Post, CNBC Make It (July 31, 2018), https://www.cnbc.com/2018/07/31 /kylie-jenner-makes-1-million-per-paid-instagram-post -hopper-hq-says.html [hereinafter Mejia].
4. Internet World Stats: Usage and Population Statistics, Internet Users Distribution, https://www.internetworldstats.com/stats.htm
5. Mejia, supra note 3.
9. John Lynch, The Rock was the highest-paid actor in the history of Forbes' Celebrity 100 for this year's list at $124 Million, Businessinsider.com. (July 17, 2018), https://www.businessinsider.com/the-rock-highest-paid -actor-history-forbes-celebrity-100-2018-7.
10. Mejia, supra note 3.
11. Claire O'Connor, Earning Power: Here's How Much Top influencers can Make on Instagram and YouTube, FORBES (Apr. 10, 2017), available at https://www .forbes.com/sites/clareoconnor/2017/04/10/earningpower-heres-how-much-top-influencers-can-make-on-instagram-and-youtube/#319e11b324db.
12. Two states, Arizona and Louisiana, have a statutory right of publicity for soldiers only. Right of Publicity, Statutes & Interactive Map, https://rightofpublicity.com /statutes.
13. 15 U.S.C. §1051 et seq.
14. 15 U.S.C. §1127.
15. CIV. CODE §§3344(a), 3344.1(a).
17. CIV. CODE §3344.1(e)(3).
18. CIV. CODE §3344.1(f)(2).
19. CIV. CODE §3344(a); §3344.1(a).
21. CIV. CODE §3344.1(i)
22. CIV. CODE §3311(c).
23. CIV. CODE §3344.1(d).
24. CIV. CODE §3344(f), 3344.1(l).
Originally Published by LosAngelesLawyer
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