On July 22, 2020, Clint Eastwood filed two separate lawsuits in federal court in Los Angeles against three CBD manufacturers and marketing companies that posted fabricated online articles falsely claiming that Eastwood endorsed CBD products, as well as ten online CBD retailers that allegedly manipulated search results to make it appear that he had endorsed their products. The court filings assert that “Mr. Eastwood has no connection of any kind whatsoever to any CBD products and never gave such an interview.”
According to the New York Times article on the lawsuits, the bizarre fake news stories claimed that Eastwood endorsed their products and was leaving filmmaking to focus on the CBD business. These same companies allegedly send spam emails with subject lines like, “Clint Eastwood Exposes Shocking Secret Today,” and containing a fake interview with an outlet intended to look like the “Today” show.
The second lawsuit against the online retailers claims that those retailers are “using programming code to insert Eastwood’s name into online search results for CBD products, misleading consumers into thinking the filmmaker is manufacturing or endorsing them.” This is unfortunately not the first time that unscrupulous CBD companies have attempted to falsely claim that celebrities have endorsed their products.
And of course, improperly using the names and likenesses of celebrities to promote product sales is a tactic that companies have attempted to use for as long as celebrities have existed. This is why in California, we have a body of law around the “Right of Publicity,” which protects against the unauthorized use of a person’s name or likeness for commercial or exploitative purposes. This body of law is based both in common law and in statute. Under Cal. Civ. Code § 3344:
“[a]ny person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.”
In interpreting the statute, courts have utilized a three-part test to determine whether there has been a violation of the statute:
- Was there a “knowing” use of the plaintiff’s protected identity?
- Was the use for advertising purposes?
- Was there a direct connection between the use of the plaintiff’s identity and the commercial purpose?
Based on the facts alleged in Eastwood’s complaint, if those facts are true, he appears to have a good argument that these companies violated the statute and his rights of publicity. Under the common law, a plaintiff must allege four things to prove there has been a violation of the common law right of publicity:
- Defendant’s use of plaintiff’s “identity”;
- Appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise;
- Lack of plaintiff’s consent; and
- Resulting injury.
Celebrity endorsement has been a popular means for promoting both cannabis and hemp-CBD products for the last several years. Companies seeking to make use of a celebrity’s name or likeness in promoting their products should be aware of the complexities of negotiating and implementing these types of deals, of which I have handled many.
Of course, it goes without saying that using a celebrity’s name or likeness without their consent is certain to land you in hot water for misuse of their right of publicity. If your brand intends to make any insinuation that your product is approved by, endorsed by, or associated with any individual (living or dead), consult with your cannabis IP attorney first.