Perhaps some readers once (or still do!) enjoyed some Natty Light while listening to the Beastie Boys. Some time ago, we blogged about the ongoing Beastie Boys litigation against Monster Energy over copyright and right of publicity issues for a video Monster Energy posted on its website. The next case to watch is Kraft v. Anheuser-Busch, LLC where individual Kayla Kraft sued Anheuser-Busch for copyright infringement, invasion of privacy, and violation of her right of publicity for using her image in an advertising campaign. This quite delightful photo shows Ms. Kraft drinking a beer and wearing a fake mustache and was allegedly used by Anheuser-Busch on posters and coasters in its “Every Natty Has a Story” Natural Light campaign. According to Kraft’s complaint, a friend took the picture of Ms. Kraft with Kraft’s phone in February 2013. Ms. Kraft then posted the photo to Facebook. Her friend later assigned her copyright in the photo to Ms. Kraft who registered the photo with the U.S. Copyright Office, and Kraft sued on February 20, 2016. Anheuser-Busch’s Answer is due by April 7, 2017.
This case demonstrates the high stakes of using the images/IP of others who do not believe they granted the necessary rights for your particular scope of use. While we tend to see these cases most frequently in the celebrity context (and you can read more about the risks of celebrity ad campaigns here and here, anyone can sue for violation of their right of publicity. Moreover, as evidenced by the fact that Ms. Kraft’s friend assigned her copyright in the photo that is the focus of the Kraft case, there may be more than one party-in-interest when it comes to a particular piece of intellectual property: for example, the person who took the photo and the party or parties that appear in it.
The complaint doesn’t say who submitted the photo to Anheuser-Busch. The press, however, is reporting that Anheuser-Busch has stated that the photo was submitted to Natural Light’s Facebook page as part of the “Natty Rewards” promotion it was running at the time. While the terms and conditions for that promotion, which can still be found at https://natty-rewards.herokuapp.com/rules.pdf, provided that submitters gave a publicity and intellectual property release to Anheuser-Busch, obtaining a release in this way has a number of issues, not the least of which is that the individual submitting the picture may not actually have the rights requested.
Time will tell what other facts come out and how the courts will handle this litigation, but in our experience, most companies prefer to avoid a lawsuit altogether. While it is always important to review the precise situation, and while click-through boilerplate language may suffice for re-use of images on social media, it may not be sufficient for more extensive use of images and other intellectual property in offline advertising campaigns, where specific, signed consent and releases that are clearly supported by consideration are a best practice.