One Small Step for a Brand

Welcome to my first post on slaw.ca. Many thanks to Simon F. and the Slaw team for having me on board! I am looking forward to contributing here, with special interest in branding, advertising and entertainment issues. I will start — by looking back.

This week saw both the 40th anniversary of the Apollo 11 mission landing the first men on the moon, and the passing of Walter Cronkite, who covered the event on CBS television. Space exploration implies science. Science is big business. For lawyers, there are patents to be registered, technology to be licensed. There are space law moots. Some will remind me that a space program implies politics. Yet as I download a Mac widget for my dashboard from the National Aeronautics and Space Administration (NASA), pull the Hubble space telescope photo of the day via iPhone App, and watch restored videos of Neil Armstrong and Buzz Aldrin on nasa.gov and YouTube, it is clearer than ever: space exploration now also means entertainment, branding and personality rights management.

Many organizations and individuals who are not traditional “entertainment” entities now find themselves increasingly pulled into the world of entertainment, branding and advertising. NASA and its astronauts are no exception. Over the next couple of posts, I will touch on some of these legal issues as found on the far side of space exploration. Here is a first installment.

Part I. The Rum, The Watch and the Astronaut.

Astronauts include pilots, scientists, civilians. They are creators, taking photographs, writing books. Some become artists (like Alan Bean, Apollo 12). They tweet, from space (see for example Mark Polansky on Twitter). To many, they are heroes. Some astronauts, whether they intend to or not, become celebrities due to their achievements, activities and public exposure. As with other celebrities such as actors, musicians, and athletes, the works they create or their personality can be targets for misappropriation, particularly in advertising.

In his book Magnificent Desolation: The Long Journey Home from the Moon (New York: Harmony Books, 2009), Apollo 11 astronaut Buzz Aldrin describes the challenge of protecting against the unauthorized use of his image. In one case, Aldrin explains how Omega watch company gave the astronauts Speedmaster watches to wear during their mission (the watches had to be returned to NASA after the mission). He wore his Speedmaster watch during his moonwalk. For years after, Omega watch company used photos of Aldrin on the moon in the advertisements, without his knowledge or consent. Neither he nor NASA received payment for use of the photos. Aldrin first raised the dispute informally with an Omega executive. The Omega representative’s response was: “You’ll probably have to sue us.”Aldrin’s counsel attempted to press the issue with Omega, but in the end did not proceed with a lawsuit. Subsequently, NASA put new standards place as to how commercial companies should compensate astronauts for use of their image in advertisements, and to protect their right of publicity to control their image, even when their faces are not visible behind spacesuit helmets. Such standards include restrictions on using of the likeness or name of astronauts for commercial purposes, advertising and merchandising.They refer to current and retired astronauts, and the families of deceased astronauts. The possibility that astronauts may require compensation for use of their likeness or name is expressly mentioned. (See NASA’s website for applicable policies.)

Another example was the use by liquor company Bacardi-Martini of the “visor shot” image of Aldrin on the moon, to promote rum. The print advertisement showed a bottle of rum splashing its contents onto the image of Aldrin standing on the moon, the lower half of his spacesuit having turned into a pair of swimmer’s legs in trunks and fins. In addition to mocking the famous “visor shot” image, the ad’s choice of depicting Aldrin was unfortunate. Aldrin, an alcoholic, was about to celebrate twenty years of sobriety. Aldrin notes that this was the second time Bacardi had tried to use the visor shot in advertising. The first time, they agreed not to use the photo once they were informed of Aldrin’s right of publicity in his image. However, on this second attempt, Bacardi’s then current advertising people seemed unaware of the prior agreement not to use the photo. The dispute received notable media attention. Bacardi issued a public apology. The case settled.

Such examples reinforce the importance of clearing rights when using an identifiable person’s likeness or name for promotional and advertising purposes. Even when one might argue the person in the image is not clearly visible, it may not necessarily avoid advertising disasters or disputes over the misappropriation of personality or publicity rights.

Go to the next installment: Part II. Serenity Now. Tranquility Later.