Gini Dietrich

AT&T Loses Case; News Release Held Under Paid Advertising Laws

By: Gini Dietrich | October 31, 2012 | 

How many of you have ever referred to something historical in a news release?

I know we have. It helps you tell a story about something that might otherwise be boring.

That’s what AT&T (then doing business as Cingular Wireless) did when they issued a news release about their MACH 1 and MACH 2 command centers that allow them to quickly respond to natural disasters so their customers aren’t without service for very long.

They mentioned how Chuck Yeager broke the sound barrier and achieved MACH 1 in a news release that was distributed via PR Newswire. And the General sued them over the use of his name.

See the paragraph below:

Nearly 60 years ago, the legendary test pilot Chuck Yeager broke the sound barrier and achieved Mach 1. Today, Cingular is breaking another kind of barrier with our MACH 1 and MACH 2 mobile command centers, which will enable us to respond rapidly to hurricanes and minimize their impact on our customers.

Seems harmless. It’s in the history books. You can pull the information from Wikipedia. It seems like you should be able to use it without consequence, right?


A jury returned a verdict in favor of Yaeger finding AT&T used his name for the..

Purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent.

AT&T moved for judgement on the case, as a matter of law, stating a news release is, in fact, news and not paid advertising, therefore protected under the First Amendment.

But the district court disagreed and found the news release to be “at least minimally promotional,” and held the company used Yeager’s name as a framing device to sell their new service.

According to Davis & Gilbert, a law firm that specializes in working with communications professionals,

The case illustrates how right of publicity laws are not limited to traditional paid advertisements but, depending on the state, apply more broadly to communications which promote the company or sale of a service or product.

This happened in California, where the laws are more strict than in most states, but it’s a good wake-up call for any of us who create stories, news, or work in public affairs to be careful in how we use a person’s name to tell our story.

When in doubt, get express and written consent from the person whose name, likeness, or image you’d like to use. It’s better to be safe than sorry.

About Gini Dietrich

Gini Dietrich is the founder and CEO of Arment Dietrich, an integrated marketing communications firm. She is the author of Spin Sucks, co-author of Marketing in the Round, and co-host of Inside PR. She also is the lead blogger at Spin Sucks and is the founder of Spin Sucks Pro. Join the Spin Sucks   community!

  • jenzings

    Well, that is very interesting. A press release is always promotional, but not always used for selling. I’m very interested to see how this plays out.

    • @jenzings It’s pretty much finished. AT&T went back to court to have the judgement reversed and the district court said, “Nope. Sorry. We consider this advertising because you’re using it to sell your new service.” So they lost. It kind of boggles my mind because they used his name in reference to a historical feat. Not in a way that says, “Chuck Yeager thinks our new service totally rocks.”

      • Starr McCaffery

        @ginidietrich  @jenzings
         I’m disappointed in AT&T if they are not further appealing this finding. I can understand there are cost situations but perhaps an industry association should be taking this up.

        • @Starr McCaffery  @jenzings Oh they did. This has been going on for five years. This was the final, final.

        • @ginidietrich  @Starr McCaffery  @jenzings  Well, ATT could appeal to the Supreme Court, but with a damage award of $135,000, it’s likely way cheaper to let it go.

        • Starr McCaffery

          @commammo  @ginidietrich  @Starr McCaffery  @jenzings
           @commammo I agree it’s cheaper to let it go and that’s why I wouldn’t suggest AT&T take it to the top on its own but, rather, our industry associations should be coming together and supporting such an effort. In the big picture/long term, it’s our problem not AT&T’s.

      • jenzings

        @ginidietrich Oh, what I meant by “how this plays out” are the broader ramifications for the industry, in other words, how this case will affect others. This is what happens when I comment with only one cup of coffee in me… 🙂

        • @jenzings Oh, oh. Yes, I agree. It’s scary. It could affect any of us who write.

  • margieclayman

    That’s really interesting. On the one hand, it makes sense to consider it promotional – you’re riding the coattails of a historical event. On the other hand, referencing something everyone knows shouldn’t be illegal, it seems to me. I’ll have to think about this one…thanks for highlighting this case!

    • @margieclayman That’s how I think abou it too. I know we’ve referenced historical events in news releases before. It’s part of how you tell a story. Would we get sued if we referenced Kennedy’s assassination? It’s something to consider.

  • So I can’t issue a news release after I beat you in words with friends without your express written consent? Bummer!

    • @TonyBennett Oh like you’ll beat me. Nice try.

      • @ginidietrich I’m still waiting for that invitation scaredy pants. Oh, and it tells me @kenmueller plays for big points!

  • I wonder how far this can go. I mean, we all blog with the end goal of making money, even if it’s not direct. So when we blog about Felix Baumgartner, or Snooki, or whomever…in order to put something in context…we could be at risk.

    • @KenMueller I was kind of scared to put his name in this blog post. It’s why I didn’t put it in the headline. I don’t know…where does it end?

      • @ginidietrich Going back to my communications law classes and my time at the Museum as well as in radio, we had to deal with “fair use” laws all the time. This is really gonna open up a can of worms in the already murky communications waters.

      • Starr McCaffery

        @ginidietrich  @KenMueller
         had the same thought Gini. Where does it end?

  • belllindsay

    I’m still shaking my head over this one. As an ex-journalist, we had all kinds of hoops we had to go through to ensure we weren’t using someone else’s work or images to tell a story, for example, but there were also loopholes such as fair dealing, fair comment, etc.. I’m stunned that this was held up in the courts. I’m still convinced there’s more to this story – maybe his image was used….?? I don’t know. But wow, just wow.

    • @belllindsay That’s what I was thinking too. Doesn’t breaking the sound barrier kind of make you a historical figure rather than a celebrity?

      • @TaraGeissinger  @belllindsay From what I can tell (I did a ton of research on it), it was just that one mention. Apparently he also sues anyone and everything, which I discovered when I Googled his name with “lawsuit.” As long as I’ve been in the PR biz, we’ve never had to get consent to mention a historical event in a news release, as it has been protected under the First Amendment. But now? Oy.

        • belllindsay

          @ginidietrich  @TaraGeissinger Crazy town.

  • Personally, I love press releases that tie into current events and buck the norm. This ruling is kind of bumming me out. I see a huge difference between referencing a historical event (like breaking the sound barrier) and celeb name dropping. I am not knowledgeable on all the details, but from what you wrote, @ginidietrich it seems that they in no way implied that Chuck was using or endorsing their product. I too wonder how this will impact companies looking to put a spin on a current event that involves a celebrity or movie or….whatever.

    • @TaraGeissinger Which makes me wonder about this trend of newsjacking that David Meerman Scott writes about. If you’re tying into history or current trends, could you be sued? I really hesitated writing his name in the blog post.

      • @ginidietrich Yes — David Meerman Scott’s method is exactly what I was thinking of. I had a client tie their press release into the death of Whitney Houston (using her name and everything.) It was a law office that specialized in estate planning. 🙂 Based on this ruling, that might not have been a good idea! LOL

        • @TaraGeissinger I think it’s a pretty gray line. And California seems to be more rigid on it.

  • If you think Gen. Yeager is tough, I hear the Theodore Geisel estate is even more so!

  • Ike

    Sadly, we’re going to see more of this.
    I’ve ranted in the past about the changing media paradigm, and how the function of journalism is changing to one of context, curation and aggregation.
    What I worry about here is we have a generation or two of judges who really don’t understand technology, and how vital these precedents are to defining communications.
    – AT&T did not pay for placement of Yeager’s name in that communication (like if it were an ad)
    – Would this have been held to the same scrutiny if the news release had been sent only through email, instead of posted online?
    – If the “posting online” part is triggering the misuse of Yeager’s public image, then how are bloggers (or any other site owners) to have any protection?
    I am most disturbed because this case leaves so many unanswered questions, and future precedent could really assault First Amendment free expression on the web.

    • dariasteigman

      @Ike , I agree with you. This is a VERY disturbing legal precedent. I’m really not sure how a mention of a historical event in the public sphere could constitute advertising in this case. From @ginidietrich ‘s post, it sounds like they were referring to the event to create an analogy (something everyone does every day–though I guess I won’t use the angry pilot dude to do it), and not intending to sell off his name. Hmm…

    • wordymouth

      @Ike It seems as though this really comes down to poor writing or logic. The press release links the historical event, Yeager’s Mach 1 milestone, to the milestone of opening a command centers, conveniently called MACH 1. Painting a picture of the thrill a pilot feels when breaking the sound barrier would have been more effective and would have avoided the reference to Yeager. In that regard, the mere mention of Yeager’s name shouldn’t have to do all the work of invoking the memory or recollection of the event.

    • @Ike This ties back to a discussion we had around the Globe & Mail writing an article about why a 23 year old should not run your social media program…but didn’t reference any of the other articles that had been written on the topic (Inc., as it turned out, was the inspiration for their story). There was a lot of conversation around disclosing your antecedents. 
      I really thought about how to write this particular blog post because I couldn’t really do it without using the pilot’s name. Does my linking to the antecedents make it OK? Am I protected because it was a form of reporting on the case settlement? 
      You’re right…it’s VERY dangerous.

      • @ginidietrich  @Ike Would he sue for cease-and-desist, or for cash? He might not care about us because we can’t pay $135,000 to make him go away…  The scale of ATT is a mite different, despite all of our thriving enterprises…

  • I read that yesterday and was somewhat surprised. I’m having difficulty with this one as Mr. Yeager breaking the sound barrier was a historical event.
    Is a can of worms opening? I write a column for the paper I publish. A while back, I included a few lyrics from Neil Diamond – accurately quoted and with full attribution. Could I be held liable? Could you not make an argument that my column has the job of selling newspapers, and therefore Mr. Diamond’s lyrics were used in a promotional manner?
    In the end, you are right. Be careful and get permission.
    Now I have something else to worry about!

    • @ClayMorgan It’s definitely a squishy area. You attributed the lyrics. Is that enough? I don’t know where it begins and ends.

  • This ruling doesn’t surprise me. It’s the same court that ruled, in Kasky vs Nike, that public statements a company makes are, by definition, commercial, regardless of their specific purpose. The US Supreme Court declined to hear the case, which has the effect of letting the district court decision stand.  The California Supreme Court relied on Bolger vs Young’s Drugs, a 1983 decision which had a three-part test to determine whether speech was commercial. 
    “the Court specified three factors that would assist in analyzing speech as commercial or noncommercial…[the materials] were conceded to be advertisements, they referred to a specific product, and the company mailing the [materials] had a clear economic motivation for their distribution. Each of these factors, considered alone, the Court concluded, does not automatically compel a classification of commercial speech…”[i]  but all three factors in combination, however, “provides strong support for the District Court’s conclusion that the [materials] are properly characterized as commercial speech. ([i] Sprague, R. Business Blogs and Commercial Speech: A New Analytical Framework for the 21st Century. American Business Law Journal 44(1) 127-159.  p. 144) 
    This particular ruling, however, only meets two of Bolger’s three tests — the last two. It’s a bad decision, unless we all accept that press releases are “conceded to be advertisements.” Plainly, if our release mentions a product, this particular court holds that it’s an advertisement. 
    So, marketing communications/PR activity (as opposed to general reputational or informational PR activity) might see some changes as a consequence of this ruling.  (we studied Kasky and Bolger in my PR law class last year, and I wrote a paper on whether blogging was or was not commercial speech under the law…)
    Many apologies for the lengthy comment, @ginidietrich and everyone… It’s my latent professor coming out…

    • @commammo I really appreciate the lengthy comment. This is all kind of crazy! Would you like to write a guest post about it for us??

      • @ginidietrich Sure – I have some time this morning, so let me see what I can come up with on this. Thanks.

  • This is disturbing, as it definitely paves the way for potential liabilities down the road with bloggers. California’s laws almost always go on to serve as legal precedent. 
    I remember negotiating the usage rights on an image of the Wright Brothers for some product packaging. The license held that the estate took 1.5% of all sales related to the use of the image.

    • @jasonkonopinski But does that have the same meaning in a news release where it’s just a mention? Maybe.

  • ScottSchablow

    I can see it now – memo from the legal department:  Your headline shall henceforth read ” a litigious, retired old General broke the sound barrier…”  However, the legal department has placed a 90-day hold on this communication to allow enough time to research whether the party in question has any legal trademark claims to “breaking the sound barrier.”  Furthermore, the Communications Legal Division must receive the proper certification from the Products Legal Division that due diligence has been exercised in the use of “MACH 1” and “MACH 2” with regard to the context of the command center product and any potential  trademark infringements within the certified TPO classification(s). Additionally,  the Communications Legal Department strongly advises you against using the term “hurricane” as we have faced litigation from Pat O’Brien’s in New Orleans and from the University of Miami for infringing upon their Hurricane trademarks. . .

    • @ScottSchablow OMG! You are killing me! “a litigious, retired old General broke the sound barrier…” HAHAHAHAH!
      Please stop by more often. You are a great source of entertainment. Thank you!

    • Starr McCaffery

       For me, personally, it’s Yaeger’s reputation that has suffered by this.

  • KellyeCrane

    I’m going to be the devil’s advocate here, and say that – while I get where everyone is coming from re: the historical event –  I also understand Mr. Yeager’s point. They could have referenced the breaking of the sound barrier without using his name. I believe the company was, in fact, trying to affiliate their new technology with the impressive reputation of Chuck Yeager (without compensating him for doing so).
    As a silly example, I could say “X years ago, Gini Dietrich founded the Spin Sucks blog (sorry, I don’t know exactly how long it’s been!). Today, Kellye Crane is [insert something relatively unrelated].” I don’t think anyone would find that kosher.
    Regardless of where we stand on this particular issue, it’s an important update/reminder – thanks for keeping us in the know, Gini.

    • @KellyeCrane  I agree, Kellye – but it’s the wider issue of what constitutes advertising that concerns me. Differentiating between product promotion PR and other PR could be a fine distinction, as Kasky/Nike proved out. This is another piece of case law that could squelch public relations and social media content in certain circumstances.

      • KellyeCrane

        @commammo @ScottSchablow You’re both right, of course. Good reminder that common sense and legal ramifications are not one and the same!

    • ScottSchablow

      @KellyeCrane I agree with your point. My concern here is that the legal precedent it sets is one without well defined parameters.  We all know that legal precedents can far outrun the boundaries of common sense.

    • @KellyeCrane It’s been six years if you want to use it. Consider this your consent. 
      I don’t disagree with you because I understand his point, too. But it was so benign. It was in a news release announcing their new service. It wasn’t an image or quote from him in support of the brand. It’s in the history books. It scares me to think how much we have to consider in doing our jobs now.

      • @ginidietrich  @KellyeCrane That’s where I fall, too, Gini. I don’t think anyone in their right mind would read that as an endorsement by Yeager. As a former journo, it pains me to think I’d have to avoid well-established history and fact while attempting to tell a story, simply because I’m writing from a brand perspective.

        • @EleanorPie  I wonder how this will affect bloggers? I mean, can he sue me for putting his name in here?

  • ScottSchablow

    I’m sorry for the indulgence but I must share the mental image the post has created.  “Chuck Yeager” Google Alerts setting off alarm sirens and his legal team scrambles into the war room, like pilots scrambling to get to their jets for combat. That is all. Oh, and Hey * waves * to Gen. Yeager.

    • @ScottSchablow LMAO!!! Thank you for sharing that. Totally awesome.

  • CjShaffer1

    I’m curious how much of this ruling has to do with the fact that this release was distributed via a paid Wire and not sent as one offs to reporters. IMHO Since it was a PAID distribution I can see how it falls under advertising, because it’s no different than buying a text ad. However, if the ruling is applied as case law to cover any mention of any person in unpaid distribution, I fear the 1st ammendment implications of this ruling. That being said, as always, GET PERMISSION.

    • @CjShaffer1 I think you might be right. When you publish a news release via paid distribution, you are guaranteeing *some* level of publication. It is a form of paid advertisement in a way. You are PAYING for visibility.
      Under normal “press release writing” circumstances, the mention of Yager’s name probably wouldn’t cause such a ruckus. The PR would have been written and distributed to specific reporters on their media list. If the PR WAS published, it would have been so under the name of the newspaper or magazine who published it — very different and more objective than self publishing online.
      Definitely something to think about. I wonder if the ruling took into account the nuances of publishing a press release online vs a traditional distribution.

    • @CjShaffer1 You know, that is a really good point. Hmmmmm….

      • CjShaffer1

        @ginidietrich I’m curious to see how the case would have turned out if they wouldn’t have advertised by paying for distro.

        • @CjShaffer1 @ginidietrich Me too. I think the paid distribution played a big part in turning this press release into an advertisement in the eyes of the court.

  • susancrowell24

    OK, maybe because I’m a journalist and not a p.r. flack (and I mean that lovingly), but doesn’t anyone else see the teensy-weensiest commercialization of the use of Yeager’s name? The news release could’ve easily been done without the reference to the pilot. I get what you’re saying about unintended references, but I actually see this as rather blatant use. And a news release isn’t news, and it IS a paid form of communication (you do get paid to write one on someone’s behalf, don’t you?) I don’t think it has anything to do with the medium of distribution (online vs. email). Just my two cents.

    • Starr McCaffery

       Yes we get paid to write news releases, just as journalists are paid to write news.

      • susancrowell24

        @Starr McCaffery  @susancrowell24 Yes, but you get paid to be subjective. I get paid to be objective. There’s a difference. Always has been, always will be.

        • Starr McCaffery

           No, I get paid to provide you with news to disseminate. Always have. Always will.

    • @susancrowell24 So, let’s say you wrote a story about the new service and you likened it to Yeager breaking the sound barrier. And he sued you for using his name in your article (which apparently he does – he’s very litigious). Or let’s say he sues me for using his name in this blog post. Are we both protected under the First Amendment? I don’t make money from the blog, but it does support the branding of our agency. And you write stories to sell newspapers. How are we different?

  • There is so much money tied into all of this I am not surprised to read about any sort of court action. It is hard for me a side that doesn’t involve Yeager’s name being used for promotional purposes to sell product/service.

    • @Josh/ Let's say you write a blog post about a new service you offer. And, in it, you refer to a historical event. Are you protected under the First Amendment?

      • jenzings

        @ginidietrich  @Josh/ Just a quick note–first amendment applies when it is *government* attempting to suppress speech.

      • @ginidietrich  Good question, but there are lots of variables. How long ago did the event take place? Did I refer to a person who was part of it or associated with it, and are they alive?
        And as @jenzings said without more information it is hard to say if my FA rights are being impacted.
        Not to mention, they aren’t unlimited so my answer is, Maybe.

  • This is very interesting. It goes along the lines of the musicians who contact campaigns asking for their music to not be used. I think the line to me is ‘Could using this person or content infer they are endorsing the product or service’
    The only way around this is if they are dead. If they are not dead then you are correct better be safe than sorry. The one caveat for this is someone who died and there is an active estate that has ownership of the person’s image/content etc like the Bob Marley estate etc.

    • @HowieG Or Elvis Presley! Crap. Now I’m going to get sued twice.

    • @HowieG I’ve worked with a few estates in the past. There’s a good reason why Elvis makes more money today than he ever did when he was alive.

  • “According to court documents, Mark Siegel, AT&T Mobility’s executive director of media relations, said he used Yeager’s name “to create positive associations in people’s mind with the AT&T brand so they would think highly of the company.”” 

    • @jasonkonopinski Hence supporting the Court’s rationale that the release is an advertisement.

      • @commammo  @jasonkonopinski I’m still not sure that’s an endorsement. I guess we know what the courts think of my opinion.

  • I am not naive about this stuff, but I AM shocked. Do you know how many times I’ve told the story of Wilt Chamberlain scoring 100 points in the Hersheypark arena to illustrate greatness? Would it have been different if a speaker used the same story in a presentation???
    And to think we were all discussing whether journalists should attribute inspirations to bloggers….THIS seems like a much bigger deal to me.

    • @AmyMccTobin I think it’s all related. Now, according to this ruling, disclosing your antecedents isn’t enough. It’s a very slippery slope.

      • @ginidietrich So I need to get permission to use someone else’s stories?  It can get really complicated – what if I was involved in the story too and my memory is different than theirs (think Family Memories)…. where does it end? BAD ruling.

  • Ike

    The old definitions have eroded, and the law isn’t keeping up.
    Yes, AT&T might have had a commercial interest in mentioning him — but it wasn’t to customers! It was a communication directly to news outlets, NONE of which would have taken at face value.
    In the end, the law will have to judge the activity involved in an existential way, with no regard for intent. Did AT&T *intend* to make money eventually through the promotion of its disaster phone towers? Probably. (It might have also been considered a stakeholder communication.) But what they did was issue a news release. And as we know, that could take the form of email, fax, post-to-web, phone call, letter or personal contact with a journalist.
    I’m not comfortable with someone coming in after the fact, assuming that I *might* have had a monetary intention when I mention Lance Armstrong and Livestrong in a blog post. I know a LOT of crisis communications professionals who have written about the Livestrong mess ON THE VERY SAME WEBSITE where they are promoting their skills and services. (Some of them even go to the point of issuing their own news releases, too.)
    I think this ruling sucks because there is WAY too much external interpretation, and it could end up being used as a legal bludgeon by a whackjob billionaire to silence criticism through threat of civil penalty.

    • @Ike This is why the question of whether a press release is equivalent to advertising is so important. The first of the Bolger tests (and you have to have all three) is whether the speech is advertising. In PR we differentiate advertising and PR on the basis of whether we pay for it: if we didn’t buy the space, it’s not advertising according to us. But in Kasky and here, the court is assuming that it is advertising because it’s promulgated by a commercial entity (at least that’s how it seems to me – would love to find the actual opinion, but it’s not published yet that I can find). Their view is that everything is about commerce for a business, therefore all their speech is commercial. Hm, that’s a thought – all those “everything is marketing” folks have their creativity impeded if that is true – and we see one potential result here.

      • kdpaine

        @commammo  @Ike I agree with the court. When you pay a wire service to distribute a release, it is the same as paying for an ad. And our very own IPR Measurement standards support that because we say that press releases do not count as news.

    • CjShaffer1

      @Ike Actually in THIS day and age when you use a wire service, customers have direct access to the press release via sites that syndicate them, without screening of a news outlet.

      • Ike

        @CjShaffer1 Yes, they do — but they only find it when they are searching for related terms. In that regard, I wouldn’t say the information was commercially placed.

        • CjShaffer1

          @Ike Just to be devils advocate, If I buy an ad in a tech magazine or on a tech site only people looking at stuff related to tech would see it, so by your standard that wouldn’t be an ad either.

        • @CjShaffer1  @Ike When you buy PR Newswire, you’re buying access to the lists and the people to format and send it on. The appearance on Yahoo! News, etc., if a side effect. Second, CJ, if you earn a placement in the Tech site that discusses your product, is that advertising? We PRs say no…

        • CjShaffer1

          @commammo  @Ike As a fellow PR I agree on your second point Comm. Earning is different than BUYING though. I have to disagree with your first point though, it is clear that you are buying access to certain sites (they list it as a benefit!), where the content will not be modified. (Aka they print your press release). I can understand (if this was the reasoning) why the court would rule the way it did. Why should BUYING a 500 word Press Release placement on a site (e.g. Yahoo news) be treated any differently than buying a 500 Word Text Ad on that same site?

        • @CjShaffer1  @Ike A reasonable question, CJ.  Especially for a product promotion release…

    • @Ike Brilliant as usual, Ike.  Although, I’d point out that news releases today can and are used in a manner more closely aligned with direct marketing through search.

      • @Ike Ah never mind. I see now CJ made the point. Didn’t read far enough down.  But I agree with that; it’s not dependent on the searchers, we know if we use related key words people will read it.  We know we are going to reach an audience directly.

  • I don’t know much about the law, but I know how I’d feel if they used my name to sell crap, and didn’t get my permission. AT&T could easily have made the same point without using the man’s name.

    • @barrettrossie Even if it was used in conjunction with your making history?

      • @ginidietrich Well, it’s complicated.
        One, the man makes part of his living endorsing products. So they’re appropriating his endorsement in a way. 
        Two, what if he doesn’t like AT&T? Or prefers one of their competitors? Or sits on the board of Verizon? I’m just trying to put myself in his position. 
        I’m not sure whether the jury was right or wrong, but I can see their point. And Yeager’s.

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