Right to Publicity question - Magazine/Website

[theslacker]

What is the name of your state (only U.S. law)? - Massachusetts

Hi folks. I have a burning question in which I have been trying to do much research on my own to figure out.

I run a website (basically an online magazine). I am going to give you a theoretical subject here, to keep things relatively anonymous. Let's say the website focuses on famous Golfers. Each golfer has a page on the website. On that Golfer's page, we list the different golf clubs that the golfer has been seen using over their career, along with links to places to learn more and buy those clubs (affiliate links - we can make money if user goes and buys the clubs). Whenever there is news , for instance if that golfer is now using new clubs, we will add that info to the page. We also allow users of the site to submit eye witness reports on what equipment the golfer is using when they saw them live. Each article also has a picture of the golfer in a public place, and is licensed for use on our site via Creative Commons (should handle the copyright aspect).

By the way. We also do interviews with various famous golfers, in addition to reviews of clubs and more.

My main question here, is if there are any legal risks for the site, mainly right to publicity? From what I can gather, this website could be categorized as a media outlet, and I believe the content is considered newsworthy, and of public interest (and not of a private nature) to golfers. That sways me to think it is fully legal. On the other hand, the articles are about famous people, and the website makes money, so i don't know if that pulls this the opposite direction.

I really appreciate any advice/ideas. Thanks!

 

[Mass_Shyster]

When Tiger Palmer signs a contract endorsing a Plutonium Sand Sedge, and you are posting pictures of Tiger Palmer using a Neutronuim Sand Wedge, you can expect a lawsuit from Plutonuim seeking an injunction and damages. It won't really matter if you are legal or not. Win, lose, or draw, you'll get buried in legal expenses defending yourself.

 

[theslacker]

I'm curious about your response. Many websites, magazines, and publications have information to this nature, regarding what type of equipment this or that person has used. If an article states, "here are some of the clubs this golfer has used over their career", and a company wants to sue because their club has not been listed yet in this factual list, what is the legal basis of this?

 

[quincy]

I am curious about Steve's response to you, as well. . .

From what you have posted, it sounds as if your website plans nicely avoid right to publicity issues, although it is always wise to have an attorney review the proposed content of your site prior to investing a lot of time, energy and money into your venture.

The areas of concern you would have with right to publicity are if you use the names and images of the public figures to promote your site or if your use of the names and images of the public figures imply that they endorse or support your site. This you must avoid.

If your images are licensed for use by the copyright holders, and you check to ensure the images do not infringe on any other copyright or trademark rights (ie. photos of logos can be problematic, so have these images reviewed by an attorney prior to publication), then your use of these images on your site should not cause trouble for you.

Your content should be carefully reviewed and edited for potentially defamatory material. Facts are safe to publish and opinions that are pure can be safe to publish, but material that implies false fact should be avoided. You can run into dangerous legal terrority with reviews if you are not careful. "I think" in a statement does not make a statement opinion.

It is always a good idea to have an attorney review all material, and it is also important to have liability insurance to cover the costs of any suits that may arise, despite your best efforts to avoid one.

 

[theslacker]

I think you are right Quincy. I just need to bite the bullet and hire a media attorney to look over my site and talk to me. I also found media insurance that would cover everything from copyright to right of publicity suits. It is somewhat costly -they quoted me $2500 a year for 500k coverage. $2500 isn't that expesnvie, but the business isn't making THAT much money yet.

 

[quincy]

When lawsuits involve celebrities, $2500 is a small investment when suits often run into the multi-millions.

I think it is worth the expense to have a lawyer well-versed in communications law review your content. An infringement suit would be unlikely if you are properly licensed to use the copyrighted or trademarked material. But lawsuits over the review and interview areas of your site can arise without careful editing of the material prior to publication.

Facts, as I said, are fine to publish. But opinion, which is what reviews are all about, can easily cross into stating false facts, which can easily cross into defamation territory. And interviews should either be completely published word-for-word or paraphrased fairly and accurately and, preferably, backed up by a taped recording of the full interview.

There are other areas that could potentially cause legal headaches, but these are the major ones you need to be concerned with.

 

[theslacker]

I agree. For reviews, we generally only work directly with the companies we are doing reviews for. So we make sure to get their final approval of the review in writing before it goes live.

For interviews...well, this is a new part of the site, so I'm just figuring it out. But the plan is to get the celebrity to look over the interview before it is published live and give their approval.

In addition, we are very careful to not say any negative things etc.....

My largest worry is just the fact that we are showing people where they can find more info and buy the "clubs" that the famous person uses. I don't know if this can be construed as making money off of the person, etc.... and if there is anythng there that infringes on someone's rights.

I wonder how much it would cost me to have an attorney go over this stuff. I have a few I found online in the state that I might ask

Thanks for all the info/advice Quincy.

 

[quincy]

Ahhh. Saying, for example, that "Tiger Woods uses a certain club and this is where you can buy it" CAN create problems for you, from a right to publicity standpoint. This may be what Steve's earlier advice to you was addressing.

Showing in a photo that Tiger Woods is using a certain club would be a fact. Providing information on where to locate these clubs would be a legitimate service. Connecting Tiger Woods to any sort of endorsement of that club, however, would be to violate his rights to publicity, and it would be especially problematic if he had a lucrative endorsement deal with another club manufacturer. It is important to let the facts or the photos speak for themselves and to not draw any conclusions from them, or imply any facts about the photos that may or may not be true.

So from that perspective, Steve is right that that could attract a lawsuit.

As for your reviews and interviews, although it is fine to give a product or service owner or a celebrity the right to approve your review or interview, that can cause you to lose credibility with your readers. No business will approve a review that negatively reflects on their product, for instance, even when a negative review is warranted. Praising a product when praise is not deserved will lose you the trust and respect of your readership. The review would be a promotional advertisement and not a true review.

Likewise, an interview that is edited by the interviewee could be considered a "puff" piece, and your interviewer may very well throw up his hands in frustration over the writes and re-writes that might be necessary to appease the celebrity.

That is fine if that is what you are going for. Nice interviews about people are nice and nice comments about products are nice.

But be aware that, by giving the right of approval to those about whom you are writing, will mean that you are presenting censored works to your readers.

Attorneys are not cheap, but it is generally less expensive to have an attorney review your material prior to publication, in order to avoid a lawsuit, than it would be to have an attorney handle a lawsuit that arises from your material after publication.

 

[theslacker]

Showing in a photo that Tiger Woods is using a certain club would be a fact. Providing information on where to locate these clubs would be a legitimate service. Connecting Tiger Woods to any sort of endorsement of that club, however, would be to violate his rights to publicity, and it would be especially problematic if he had a lucrative endorsement deal with another club manufacturer.

So I've been thinking about this. What I do now for example is say "Mr Progolfer used this club 5 years ago. He also has used this club in his set before too". Then there are pictures (from the affiliate) of the clubs (affiliate links) which the user can click and be taken to a website which allows them to read about what that club's specs are, in addition to purchase that club if they so chose. This sounds like what you said above, in that it is "Providing information on where to locate these clubs would be a legitimate service". I just can't quite tell based on your post whether this would invade any sort of endorsement, past or current or right to pub. I'm not sure exactly what "Connecting Tiger Woods to any sort of endorsement of that club" entails. It's a mind boggle for a non-professional like myself to figure out.

Thanks for helping me think this out. It will be good to get some grasp on it so I can intelligently talk to whatever lawyer I find in the area.

 

[quincy]

What you wrote above that you currently do (a photo of Woods with a particular club and/or provable factual dates that he used that club, with a link to sites that market the club) should be okay. The photo and dates of use are facts and the link is a service. If you have to click on a Tiger Woods' image to get to the site, however, that would not be okay.

You cannot publish a photo and/or cite the dates of use, and also say something like, "To be like Tiger Woods, use this club" or "Tiger Woods prefers to use these clubs and you will too." Statements like those would be considered endorsements BY Woods and can be considered false facts. Statements that conclude something from a photo and/or the factual data, without proof that the conclusion is provably true, should be avoided, as these types of statements can connect Woods' name and image (a valuable property/publicity right belonging to Woods) with the club or the club's manufacturer.

That said, opinions expressing why you think Tiger Woods finds a certain club an advantage can be okay, or speculating on why he uses a certain club can be okay, as long as your opinion does not imply any false facts. Opinion can be supported by facts (it has been raining every time he uses this club which makes me think that the grip on the club is good), and erroneous conclusions can be drawn from facts (because it is raining when he uses these clubs, if he doesn't use them it won't rain), but opinion never states or implies false facts (Tiger Woods uses these clubs in the rain because he thinks they have a better grip than other clubs). Or, at least, opinion never states or implies false facts without some risk to the speaker.

Opinion is an especially tricky area as it can be very easy to unintentionally imply a false fact when stating an opinion. That is why a review of the content is important prior to publication. You are certainly given more freedom to write and to speak about a public figure than you are a private figure, however, and this will be to your advantage on your website.

As for the law being a bit mind-boggling, yes, it is. And attorneys count on that fact so they can stay gainfully employed.