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Gini Dietrich

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

By: Gini Dietrich | October 31, 2012 | 
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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?

Wrong.

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, a Chicago-based integrated marketing communications firm. She is the lead blogger here at Spin Sucks and is the founder of Spin Sucks Pro. She is the co-author of Marketing in the Round and co-host of Inside PR. Her second book, Spin Sucks, is available now.

91 comments
barrettrossie
barrettrossie

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. 

Ike
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.

AmyMccTobin
AmyMccTobin

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.

 

 

Howie Goldfarb
Howie Goldfarb

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.

Joshua Wilner/A Writer Writes
Joshua Wilner/A Writer Writes

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.

susancrowell24
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.

CjShaffer1
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. 

ScottSchablow
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.

KellyeCrane
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.

ScottSchablow
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. . .

jasonkonopinski
jasonkonopinski

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. 

CjShaffer1
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. 

 

commammo
commammo

 @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. 

barrettrossie
barrettrossie

 @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. 

ginidietrich
ginidietrich moderator

 @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?

TaraGeissinger
TaraGeissinger

 @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.

ginidietrich
ginidietrich moderator

 @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. 

ScottSchablow
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.

commammo
commammo

 @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.

ginidietrich
ginidietrich moderator

 @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!

barrettrossie
barrettrossie

 @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. 

Ike
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.

kdpaine
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. 

AmyMccTobin
AmyMccTobin

 @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.

Joshua Wilner/A Writer Writes
Joshua Wilner/A Writer Writes

 @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.

CjShaffer1
CjShaffer1

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

Eleanor Pierce
Eleanor Pierce

 @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. 

CjShaffer1
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?

 

commammo
commammo

 @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
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.

TaraGeissinger
TaraGeissinger

@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.

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