It’s the fifth hour of being deposed with a couple of hours to go. The last two hours are the toughest. You’re tired and your blood sugar level is low. Opposing counsel, leading the inquisition, knows it, planned it that way and is saving the tough attacks for the end of the day.
The stakes are high. Through what will become hundreds of pages of transcript, I’m being questioned by one of the best attorneys in the country. And his goal is to make me, the expert witness, look inexperienced and ill informed. To find flaws in my logic.
In the last 20 years as an expert witness, I’ve been deposed 19 times and been on the witness stand 10 times in 40-plus lawsuits filed by celebrities against advertisers who were alleged to have used their persona or the benefits of intellectual property without permission. In 2009 alone I’ve been retained as an expert or consultant in five of the highest-profile cases including 50 Cent versus Taco Bell and Woody Allen versus American Apparel.
I have 33 years’ experience as a deal maker between celebrities and advertisers, which has given me a rare perspective and knowledge base. This has been a valuable tool in court not only for celebrities who need a credible witness to say that the use of their persona is worth a great deal of money, but also for advertisers trying to prove that their use of a less-than-stellar celeb’s persona should not be valued in the stratosphere.
I’m not an attorney, but from my experiences as an expert witness, in my opinion advertisers can learn a lot from these cases. First, it’s important to listen to that little voice called your conscience. In most cases there was someone at an ad agency who asked, “Do we need permission to do this?” A little bell should ring. Lesson one? If you ask, “Do we need permission…” then yes, you do. And you know you do. That’s why the question came to mind in the first place. And it’s that moment when you can save future attorney fees and embarrassment.
There seems to be more of these cases now than ever. Don’t people learn from the mistakes of others? I’ll leave the analysis of that to psychologists and information analysts, but the fact is that using celebrities and other intellectual property without paying, happens. Often. It might seem that using a famous face or name without permission on a Web site as part of your new viral marketing campaign is cool, clever, and groundbreaking, but despite all of the new media jargon that makes it sound very acceptable, it isn’t.
When the celebrity actor, singer or writer sitting at home sees their names, photos or work being used without permission or compensation, they feel violated. Just like you or I would feel. They call their attorney and the grief begins.
I expect that more, rather than fewer, of these unauthorized uses and subsequent lawsuits will take place in the coming years. Logic would dictate otherwise because advertisers are more sophisticated by the day. But reality isn’t logical. So, why do these unauthorized uses occur? Here’s the top 10 reasons:
1. “I didn’t know it was illegal.”
2. “The person is a public figure and it was just a news photo.”
3. “The celeb should be pleased we are giving her new TV show all this free advertising.”
4. “Hey, we are the largest [your industry here] company in the world. He should be thrilled to be identified with us.”
5. “Our attorney said it would be OK. At least, that’s what I thought he meant when he said, ‘It’s a gray area.'”
6. “This creative is so hot. Talent’s gonna love it.”
7. “It was just a minor use; that doesn’t count, does it?”
8. “All we did was state a fact about the star, it’s not like we said she uses the product.”
9. “Gee, you mean people really get paid millions for the use of just their name?”
10. “We were just complimenting the star. It was an ‘homage.”