|Humprey Bogart and Ingrid Bergman in the 1942 Casablanca movie.|
Burberry is currently facing a lawsuit for using in their social media (Facebook, Twitter and Instagram) an image of the 1942 movie Casablanca showing actor Humprey Bogart wearing a - supposedly* - Burberry trenchcoat.
|Bogart wearing the trenchcoat in Casablanca|
The lawsuit was filed on April 10, 2012, in Los Angeles, by Humprey Bogart's son Stephen on behalf of Bogart, LLC. The heir claimed that the Burberry illegally used an image of his father wearing a trenchcoat to promote their products and is seeking "unspecified damages".
Bogart, LLC claims that it owns “common law” rights in the Humprey Bogart and Bogart trademarks, as well as the exclusive right to use Humphrey Bogart’s name, image, likeness, voice and celebrity and that Burberry’s use of the name and image of Bogart infringes Bogart, LLC’s rights.
On May 1st, filed a counter-claim alleging that it has not infringed any of Bogart, LLC’s rights, and that the use of the Bogart photograph is protected by the First Amendment. Namely, Burberry claims that the photograph was not used in a way to suggest a sponsorship or endorsement of Burberry and that a licensing fee was paid to the Corbis photo agency for the image.
"Although it is not certain how this case will ultimately be resolved, it raises a number of issues regarding the interplay between copyright, trademark, right of publicity and commercial vs. noncommercial uses of the name. For example, even though Burberry licensed the use of the photograph itself and it thus is not infringing any copyrights in the photo, Bogart LLC can still maintain a claim for violating Bogart’s right of publicity. In addition, while use of the name and likeness of a famous person for pure news reporting is protected by the First Amendment, Burberry’s use may be deemed more of a commercial use (i.e. Burberry is using the image in connection with its marketing efforts), and hence, Burberry may not be able to rely on the First Amendment as a defense. As a best practice, whenever a company wishes to use a celebrity name or likeness in connection with its business in any way, it is recommended that the use of the name or likeness be cleared with the celebrity or his/her heirs. Even if the name or likeness is not used in a traditional advertisement, and the company makes no express statements to indicate an endorsement or sponsorship, the company may still be found liable for violating the celebrity’s right of publicity or other such rights" says Mary L. Grieco, from Olshan Frome Wolosky, LLP.
*(According to the Daily Mail online, Bogart's son has claimed that there is a heavy likelihood that the trenchcoat his father wore in the film was actually made by rival British brand Aquascutum. 'It is well known my father was a loyal Aquascutum customer in his personal life.")