For those of you that watched the red carpet happenings at last year’s Golden Globe Awards, you may have noticed the “Fiji Water Girl”, a model standing ready to keep Hollywood glitterati hydrated with bottles of Fiji water, photobombing numerous shots of celebrities.  Her presence on the red carpet created a social media firestorm and the Fiji Water Girl – a model named Kelly Steinbach – garnered instant and substantial notoriety.  Now this notoriety has evolved into a lawsuit, pitting Steinbach against the very brand of water she was representing.  It appears that Fiji created numerous life-size cardboard cutouts of Steinbach from a photo of her on the red carpet at the Golden Globes holding a tray of Fiji water and placed them at grocery stores and at other retail point-of-sale locations.  In fact, People Magazine published a picture of John Legend leaving a Beverly Hills grocery store with the cardboard cutout of Steinbach in the background next to a display of Fiji water.  Steinbach claims that Fiji never had her permission to use her likeness in such a manner and such use by Fiji violates her right of publicity.

California Civil Code Section 3344 states, in pertinent part:

“Any 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….shall be liable for any damages sustained by the person or persons injured as a result thereof.

The entire purpose of 3344 is to allow individuals to control any commercial interest they may have in their persona.  That said, every use of a person’s likeness in connection with a commercial product or service is not actionable.  Section 3344(e) states that:

“[I]t shall be a question of fact whether or not the use of the person’s name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required.

The statute also contains a “safe harbor” for use in any news, public affairs, or sports broadcast or any political campaign.

Most contested right of publicity cases address the fine line between commercial use and a protected First Amendment use.  Although the Supreme Court provided guidance in Comedy III Prods., Inc. v. Gary Saderup, Inc. for determining the difference between protected First Amendment speech and the actionable usurpation of an individual’s right of publicity, balancing tests are never as clear as practitioners would like them to be.

Here however, it seems like a clear case, but like any good Hollywood movie, there’s always a twist.  Fiji claims that the lawsuit is frivolous and without merit.    Fiji claims that “[a]fter the Golden Globes social media moment, [it] negotiated a generous agreement with Ms. [Steinbach].”  Fiji even claims there is a videotape of Ms. Steinbach signing an agreement; Steinbach claims that the agreement was not really an agreement and the signing was a staged event.  Fiji claims that Steinbach “blatantly violated” the agreement between them and stated that it’s confident that it will prevail in Court.