Last month, Sofia Vergara, star of ABC’s Modern Family, reached a settlement in a lawsuit brought by the actress against beauty company Venus Concept for alleged improper use of her likeness on television and in social media, which Vergara alleged created the false impression that she endorsed the Venus Concept brand or its treatment products. In the lawsuit, Vergara claimed $15 million in damages.
The origin of the dispute dates back to 2014, when Vergara posted a selfie to her WhoSay account (an Instagram-like social media app) during a “skin tightening” massage with the Venus Legacy machine. The posted image featured a close-up of a portion of Vergara’s face, with a massage technician using the machine on her lower back, and a large poster of Marilyn Monroe’s laughing face hanging on the wall in the background. In the post, Vergara included the caption “What is so funny Marilyn?? Legacy massage at @drlancerrx.”
Venus Concept later used the photo during a television segment on the show “Extra!,” and posted it to several social media pages, using captions such as “Loved by bombshell actress Sofia Vergara[,]” which, in her suit, Vergara alleged made it appear like she endorsed the massage treatment. However, according to her claims, Vergara thought the treatment was a “waste of time and money with little in the way of any results” and that she “would not use it again and certainly would not endorse it nor agree to appear in an international advertisement campaign to promote it.”
Vergara, alleged to be the highest-paid woman in television, claimed she in the past made $15 million for endorsement deals, and therefore sued Venus Concept (and various affiliated companies) for that exact amount, i.e., what she allegedly would have been paid for an endorsement. Previously, Vergara has appeared in campaigns for such brands as CoverGirl, Diet Pepsi, Kmart, Comcast Xfinity, State Farm, Rooms To Go, Head and Shoulders, and Quaker Oats.
While the lawsuit did not reach a final ruling on the merits (and the settlement amount is undisclosed), the case is yet another illustration of the very real modern phenomenon of implied false endorsement litigation surrounding companies’ use of celebrities’ image, likeness, or work in social media promotion or advertising. For example, in 2015, the pioneering hip-hop group Beastie Boys successfully sued Monster Energy based on the beverage company’s unauthorized use of certain Beastie Boys songs in an online promotional video. The Beastie Boys claimed false endorsement and copyright infringement after the montage of Beastie Boys hits was posted on YouTube and Facebook. The Beastie Boys have long declined to license their music for use in advertisements, and, similar to Vergara’s claim, maintained that use of their songs without permission in Monster’s online commercial gave the consuming public the false impression that they endorsed Monster, its advertising campaign, or its products.
The omnipresence and popularity of social media platforms such as Twitter and Instagram have led to a sea change in how brands and advertisers seek to reach consumers, with paid (but not always disclosed) social media endorsements by celebrities and athletes driving consumer demand for products like never before, as well as the creation of a cottage-industry of “social influencers,” namely, aspirational fashionistas, models, or musicians, paid by brands to endorse particular products via social media due to the volume of their Instagram account followers. Indeed, partnering with such popular social media content creators is now one of the most effective ways for brands to reach and engage with consumers who spend hours each day on social media platforms and look to top Instagram influencers to make purchasing decisions.
In that past, celebrity false endorsement suits often involved an advertiser imitating a celebrity’s likeness or voice to sell a product without that celebrity’s consent, to create the impression of some association with that celebrity; in those cases, the advertisers were the creators of the allegedly problematic content. However, as the Vergara case illustrates, in this modern social media landscape of re-tweeting and re-posting, brand owners may still face liability even if they are not the creators of the content, and celebrities are keenly aware of the value of a paid social media endorsement. Merely reposting a celebrity’s Instagram account (or a paparazzi photo), even if well-intentioned, may open a brand owner up to a false implied endorsement claim if consent of the celebrity is not first obtained.
Under Lanham Act case law, a false implied claim is one that may be literally true but nonetheless deceives or misleads consumers by its implications. The FTC’s “Guide Concerning the Use of Endorsements and Testimonials in Advertising” defines endorsement as any advertising message “that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser.” A celebrity’s unpaid mention or use of a product in a social media post is certainly valuable to a brand owner as a “free” endorsement. And it may be tempting for brand owners to immediately re-post a celebrity’s social media account which features or seemingly approves of that brand owner’s product. But, as the Vergara case illustrates, consideration needs to first be given to the implications of re-posting the celebrity’s account, and any related captions or editorializing, so as to not create the impression of endorsement, authorization, or sponsorship by the celebrity without his or her prior consent.
Copyright © 2017, Sheppard Mullin Richter & Hampton LLP.
