Everyone LOVES memes on social media. They are funny (mostly). They communicate ideas, or a mood, or tell a joke in a modern shorthand that uses words sparingly. Memes for private communication between friends is one thing. Using memes on your business social media channels should be supervised very carefully, especially when your social media manager wants to jump on the latest bandwagon in an attempt to get clicks.
The LeBron James free agent sweepstakes was THE story on all sports channels and sports YouTubers for weeks. Then the Philadelphia 76ers unexpectedly signed LeBron James in what appears to be the last stop in his long and storied playing career. No one predicted this.
What was predictable was that social media managers and small business owners were going to race to their phones to get in on the LeBron hype. On business social media channels around the Philly area, within minutes of the 76ers announcement, social media posts appeared showing LeBron in a Sixers uniform sipping a latte at the local coffee house. Or visiting a certain art school in the city. Or carrying a 12 pack of the local brewpub’s product. The list goes on and on. [N.B. There will be no reproductions of these posts in this space, but you will not have to look hard to find them.]
To be clear, these are social media posts on business channels, using the likeness of LeBron James to advertise the business’s products or services. At this point, your 25 year old social media manager who should be reading this will ask – What’s the problem?
The problem is that Pennsylvania, like most states, have statutes that prohibit the unauthorized use of a person’s name, image or likeness for commercial purposes.
Pennsylvania codified the right of publicity at 42 Pa. Cons. Stat. Ann. § 8316, which establishes a direct cause of action for unauthorized commercial use of a person’s likeness. Under the statute, any natural person whose name or likeness has commercial value and is used for any commercial or advertising purpose (i.e. selling or promoting a good or service) without the written consent of such natural person may bring an action to stop such unauthorized use.
The statute also authorizes the recovery of monetary damages for any loss or injury sustained by such use. Said another way, a plaintiff in such a matter can seek an injunction and also money damages.
Note that the statute requires written authorization from the person depicted in order for the use to be permissible.
The statute defines name or likeness broadly to include any attribute of a natural person that serves to identify that natural person to an ordinary, reasonable viewer or listener, including, but not limited to: name, signature, photograph, image, likeness, voice, or a substantially similar imitation of one or more thereof.
Commercial value is defined as a valuable interest in a natural person’s name or likeness that is developed through the investment of time, effort, and money. Certainly any professional athlete fits that description.
A word to the wise: Think before you post.
This information is provided for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisers.
