LEGAL ≠ MORALS

By: Richele Ellison

​Not only is the Super Bowl known for intense football and elaborate performances, it is also
known for its lively commercials. Marketing companies will tap big name, and sometimes
random, celebrities to appear in these commercials for a little umph. But, do they take it too far
when the featured celebrities are no longer alive? For a majority of public figures, their image
and likeness is their solitude. In particular, Prince, Martin Luther King, Jr., and Kurt Cobain
were all super protective of how their names and images were used when they were alive. Even
after death, each individual’s estate or other third-parties control how their “publicity rights”
and likenesses are marketed.

So, what do these three iconic figures have in common? They were all featured during the Super Bowl broadcast in contrary ways as to how they presented themselves during their lifetimes.

During Justin Timberlake’s Half-Time performance, he gave a mini-tribute to Prince by projecting a large image of Prince during his cover performance of “I Would Die 4 U.” This “tribute” was much to the dismay of Prince’s family, and Justin Timberlake did not get permission from Prince’s estate to use his image during the performance. Then how did he use it?

Basic publicity rights in most states will allow Prince’s estate to control any uses of his image, including for the Super Bowl. The estate might also have trademark claims and related unfair competition claims if any imagery of Prince is used to falsely imply sponsorship or association.

The actual image that Timberlake used, however, is from the movie “Purple Rain” which Prince starred in back in 1984. Prince does not own the rights to the movie, including any imagery of his likeness used within that movie. Prince almost certainly licensed all rights to his image for use in the movie, including downstream future uses.

Given the magnitude of the NFL and the Super Bowl, it is more likely that the movie studio licensed the right to this image, bypassing the Prince estate entirely. It may be against all of Prince’s wishes for his image, but legally speaking, it was out of his estate’s control.

Next up is the use of Martin Luther King, Jr.’s voice an speech to ... sell trucks!?

MLK’s image is iconic. His estate, particularly his now deceased wife, Coretta, has vigorously protected his name for nearly 50 years. To hear his voice and speech being used to promote a truck company was quite alarming and received much negative feedback. Especially since the “Drum Major Instinct” speech being used by Dodge left out the part about King questioning the virtues of crass commercialism (like selling cars and trucks)

​So, how could Dodge ever get the rights to air this commercial. The King family objected to the request to use his name, voice, and speech ... right? This has to be a violation of Dr. King’s publicity rights, his copyrighted speech and his trademark voice ... right? Apparently not.

Dr. King’s publicity rights and related intellectual property rights are managed by the entity called “Intellectual Properties Management.” Through this entity, MLK’s estate did, in fact, approve the use of all of his IP rights for this commercial. No matter how tone deaf or tasteless Dodge was for creating this commercial – they had the legal right to make it and air it, with full knowledge and permission by the MLK family and estate.

Lastly, T-Mobile used an instrumental version of Kurt Cobain’s song “All Apologies” to... sell cellular phones.

In the commercial promoting T-Mobile, a lullaby rendition of Kurt Cobain’s “All Apologies” played over a sequence of infant babies.

While this commercial did not use his name or his image, its use of the music is contrary to the type of artist Kurt Cobain was.

The ethos of Nirvana’s music and message is antithetical to mass commercialism and advertising. Kurt Cobain routinely rejected requests to license his music, but his estate has since grown to be worth half a billion dollars after his untimely death.

Although T-Mobile most likely obtained the necessary and proper legal rights to use the the song, its rendition is may be considered inappropriate to fans who are aware of Kurt Cobain’s intention as an artist.

Would Kurt Cobain have agreed to license his music to a telephone company for a commercial if
he were alive? Of course not. Martin Luther King, Jr.? Not a chance. Especially given that Dodge
took his speech entirely out of context. Prince? Absolutely not, especially being that Prince was
famously protective of his name, his image, his music and everything he did.

To even consider the fact that these iconic figures were exploited during the Super Bowl is nothing short of disheartening.

Nevertheless, all three uses were also entirely legal. These uses are good examples to demonstrate that what is legal may not necessarily also be ethical or moral. ​Laws and ethics are in theory correlated, but as we see here, this is not always true.