According to the complaint filed in the Central District of California on September 2, 2019, Forever 21 contacted Ms. Grande’s representatives at the end of 2018 to propose an endorsement deal between the two parties. The endorsement deal sought by Forever 21 focused on social media marketing, including Twitter posts, Instagram posts, and Instagram stories. The complaint alleges that the parties partook in negotiations during the end of 2018 and the beginning of 2019, but that a deal was never inked because “the amounts that Forever 21 offered to pay for the right to use Ms. Grande’s name and likeness were insufficient for an artist of her stature.”
Despite the failed negotiations, the complaint alleges that Forever 21 instead elected to use Ms. Grande’s name, image, likeness, and music without her permission, so as to create the false perception that she endorsed its products. The complaint includes depictions of social media posts from Forever 21 and Riley Rose social media accounts using pictures of Ms. Grande and lyrics from her songs. In addition, the complaint references multiple social media posts displaying a purported “look-alike” model. Ms. Grande alleges that the defendants “falsely suggested Ms. Grande’s endorsement by hiring a look-alike model” and posted “photos of that model in clothing and accessories that resemble clothing worn in Ms. Grande’s music videos and that the public immediately associates with Ms. Grande.”
The complaint further alleges that Ms. Grande’s representatives repeatedly demanded that the defendants take down the allegedly infringing images, and despite their agreement to do so, the defendants failed to take such remedial action.
The complaint lists several claims, including violation of California Civil Code § 3344, violation of common law right of publicity, false endorsement, trademark infringement, and copyright infringement, and seeks damages of at least $10 million.
Takeaway: The complaint offers a peek inside the world of social media marketing and influencing, alleging that the market value for any single Instagram post by Ms. Grande is well into six figures, and seven to eight figures for more long term endorsement deals. Brands should be aware of the risks of using the name and likeness of individuals in social media posts without permission, particularly when those individuals are celebrities with brands of their own to protect.
AssociateAs a member of Olshan’s Brand Management and Protection Group, Morgan helps guide clients on all facets of brand management, including privacy, advertising and intellectual property optimization, enforcement and defense ...