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Brewing giant Anheuser-Busch LLC faces a lawsuit over a picture of a woman wearing a false mustache and downing a beer that was featured on posters and coasters in its “Every Natty Has a Story” Natural Light campaign ( Kraft v. Anheuser-Busch, LLC , E.D.N.C., 17-22, complaint filed 2/20/17 ).
The company insists it had permission to use the image, telling Bloomberg BNA that someone voluntarily submitted it via a Facebook promotion. The company is a subsidiary of Anheuser-Busch InBev SA/NV, which garnered $45.5 billion in revenues in 2016.
The case highlights the importance of proper releases, according to social media lawyers who spoke to Bloomberg BNA. Clickthrough boilerplate can put companies on shaky ground when an online campaign crosses into the real world. This is particularly important in the age of online influencer marketing, in which particular individuals are used to drive a product’s message to a bigger audience.
The lawsuit claims that “Every Natty Has a Story” promotional items infringed Kayla Kraft’s copyright interest, invaded her privacy and misappropriated her image without permission, the latter of which is known as a “right of publicity” claim. Kraft’s lawyer didn’t respond to requests for comment.
According to Kraft’s complaint, a friend took the picture with Kraft’s phone in February 2013. Kraft then posted the photo to Facebook. The complaint doesn’t say who submitted the photo to Anheuser-Busch.
The brewery insists it’s in the right. “The photo was submitted to Natural Light’s Facebook page as part of Natty Rewards,” which offered rewards to Facebook users over 21 years old “for submitting photos of themselves ‘acting natural,’” Cheslea Phillips, director of value brands at Anheuser-Busch, told Bloomberg BNA in an email. Phillips said the company believes Kraft’s complaint has no merit and that it will “defend against it.”
Online marketing is now often done through paid influencers—online personalities whose opinions can move millions, according to Robert J. deBrauwere, who co-chairs the digital media practice group at Pryor Cashman LLP, New York.
“These people make significant amounts of money in their roles as influencers, and someone in the position of Anheuser-Busch could underestimate the value of that person’s publicity,” deBrauwere told Bloomberg BNA. If an online image turns out to be one of these people who make money off their personalities, “the damages could be very, very significant.”
A clickthrough agreement alone might be okay when a purely online promotional program is ephemeral, deBrauwere said. That is, the images and promotional messages don’t hang around and aren’t used after the social media campaign ends.
But anytime something gets printed to paper, as in the “Every Natty Has a Story” promotion, the company needs to get a solid signoff, deBrauwere said.
The alcoholic beverage industry even has its own set of standards put out by the Distilled Spirits Council for what to do when using pictures of people in advertising. DeBrauwere advises his clients to stick to these guidelines—even when people voluntarily send in pictures of themselves.
Even if the person in the picture isn’t an internet celebrity, advertisers should still be careful about securing proper releases, Allison Fitzpatrick of Davis & Gilbert LLP, New York, told Bloomberg BNA.
“It’s hard for people to understand, but it’s very clear, people don’t relinquish their rights by posting on social media,” Fitzpatrick said.
Fitzpatrick said that even if someone clicks “yes” on boilerplate that gives permission to use an image online, courts would be unlikely to extend that agreement to “posters, coasters and other merchandise without giving something in return.”
Kraft is represented by the Kessler Law Firm PLLC and Coats & Bennett PLLC.
To contact the reporter on this story: Anandashankar Mazumdar in Washington at AMazumdar@bna.com
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