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Editorial content that references other works

Posted: Mon Mar 25, 2019 5:21 pm
by cestrian77
I work with a number of businesses supporting them in their marketing efforts. One of those businesses (Company X) is keen to improve their profile through blogging activities, but wants to incorporate references to celebrities and other published media. For example, "Business lessons from Richard Branson".

Whilst the article wouldn't be an endorsement of Company X by Richard Branson, what's the legal/copyright position on blog articles like this? Company X is a commercial enterprise. Do we need to steer clear of using Richard Branson's likeness/photo in any blog post by Company X, or is it broader than that and we should just avoiding using any celebrity likeness? All of the information in the blog would come from public domain information about Richard Branson and his various business enterprises.

Additionally, although we see a lot of other companies sharing memes on Facebook or Instagram with overlaid quotes from the likes of Muhammad Ali, Warren Buffet or even the Wolf of Wall Street... as a commercial business, what's the position on sharing or re-sharing motivational/inspirational quotes from people such as this? Is it best avoided? Or is it a fair use case?

Should we include a disclaimer that makes it clear any references to the individuals included in a blog post does not constitute endorsement... or something of that nature?

Thanks in advance.

Re: Editorial content that references other works

Posted: Mon Mar 25, 2019 7:26 pm
by AndyJ
Hi again cestrian77,

It's probably best to split this into two sections, one dealing with copyright, and another on the apparent endorsement aspect.


Re-quoting short statements, aphorisms or mottos and the like should be OK provided that the use is 'fair', that is to say the original source is not quoted at too great a length and an acknowledgement of the source is given. Following this guideline should mean that any quotes would fall within the section 30 exception and no permission is required. If you use images of the personalities you quote from, make sure you have licences to support the use of such images. Probably the best way of doing this without hassle is to source such images from picture agencies or microstock sites.

Avoiding the appearance of endorsement.

Where quotes from prominent people are used, you should make it as clear as possible in the way the blog artcles are written that they are editorial/reportage rather than obvious puffs for the company. Merely using a quote from, say, Richard Branson, to illustrate the philosophy of the company should be fine so long as the context makes it obvious why that particular quote is necessary/appropriate. Gratuitous or 'name-dropping' references should avoided since this will tend to lead to the suspicion that a fake endorsement is being invoked. This in turn could result in a claim of passing off. There are a couple of relatively recent cases which demonstrate how the UK courts analyse claims concerning false celebrity endorsements. In Fenty v Top Shop the singer Rihanna successfully sued Top Shop for usng her image on a range of tee shirts without permission. The court noted the fact that Rihanna was known for endorsing products such as fashion wear (indeed she had had an earlier deal with Top Shop which had been endorsed by her). The second case is somewhat older and involves the former F1 racing driver Eddie Irvine (Irvine v Talksport). In that case Irvine successfully sued the radio station TalkSport for using his image, which had been digitally altered to show him holding a radio, to advertise the newly launched TalkRadio. The court found that the use of Irvine's image was misrepresentation since it might be perceived by some recipients of the promotional material that he either endorsed the new station or was going to appear on it. Neither of these was the case.

It is not possible to give definitive boundaries for what might or might not lead to a passing off claim, as much of the time it will depend on the personality concerned and his/her appetite for using the courts to protect his/her image. Care needs to be taken with the presentational/editorial aspect of the postings. For instance using a large picture of Richard Branson above a blog post that uses a single quote from him, buried deep in the posting, would be much more problematic than if the whole posting was all about Branson's business philosophy or noted achievements etc. A disclaimer wouldn't hurt, but it shouldn't be necessary if sensible precautions are observed.