Last year, I wrote this post about a lawsuit by actor Jesse Eisenberg against the producers of a direct-to-video, low-budget horror movie Camp Hell. For those of you who don't feel like clicking on that link to read my previous post, here's a quick summary: in 2007, Eisenberg agreed to appear in Camp Hell as a favor to some friends. He was on set for only one day of filming, and logged only a few minutes of total screen time. Fast forward to 2011: Eisenberg is a well-known actor, having played lead roles in The Social Network and one of my favorite movies from 2009, Zombieland. Because he was only minimally involved in the movie, he was surprised to see that his face was prominently featured on the cover of the DVD, implying that he starred in the film. His lawsuit asserts various California law causes of action, including claims for unfair business practices and publicity rights.
This week, a Court in California issued a ruling in the lawsuit on a motion to dismiss that was filed by the defendants, Lionsgate Entertainment, Inc. and Grindstone Entertainment Group LLC. In the motion, the defendants argued that Eisenberg's lawsuit should be barred as infringing upon their rights to free speech. Eisenberg argued that free speech rights don't apply because the defendants' actions were commercial speech, and his image was being used for the purpose of leading the public to believe that his part in the movie was more significant than it actually was. The Court agreed with Eisenberg, partially denying the defendants' motion to dismiss and allowing the actor's lawsuit to proceed.
In the small business context, the lesson learned from this lawsuit seems obvious: if you want to use a famous person's likeness to advertise something, you need to be certain that you first obtain their permission to do so. "Free speech" principles aren't so broad that they would protect your "speech" if it is solely commercial in nature.