Consent is key 3 min read
Ice Cube recently filed proceedings in the US against the popular trading app Robinhood, to freeze the use of his image and likeness. This highlights the dangers of advertisements using the name, image or likeness of a celebrity without their consent.
- Australia does not have laws that specifically prohibit the use of another person's name, image or likeness.
- However, the general prohibition against misleading or deceptive conduct under the Australian Consumer Law, as well as the tort of passing off, will likely prevent businesses from using advertisements that include the name, image or likeness of a celebrity without their consent.
Marketing teams; legal counsel.
O'Shea Jackson, Sr (aka Ice Cube) filed a complaint in a United States District Court against a provider of online financial services (Robinhood) on 31 March 2021. He seeks damages (including punitive damages), as well as injunctive relief.
Broadly, the complaint relates to an advertisement by Robinhood that uses Ice Cube's image and likeliness without his consent (the advertisement). The advertisement includes a photograph of Ice Cube from the film Are We Done Yet?, together with the caption 'Correct yourself, before you wreck yourself.'
Ice Cube is famous as a rap artist, actor and entrepreneur, and as an activist for social justice and civil rights. Relevantly to the complaint, he recorded a platinum-selling song in 1992 called 'Check Yo Self'. The song includes the lyrics 'Check yo self before you wreck yo self.'
Ice Cube alleges that the words 'Check Yo Self' are his signature catchphrase, and that the advertisement (mis)quotes the lyrics to create the false impression that he supports and endorses Robinhood's products and services.
Although Ice Cube is the owner of a trade mark registered in the US for the words 'Ice Cube' in relation to entertainment services (among other things), his name/trade mark was not used in the advertisement and so Ice Cube does not allege trade mark infringement against Robinhood.
Instead, Ice Cube alleges three causes of action under US law that are generally directed to the unauthorised use of his image and likeness. He also alleges that Robinhood engaged in 'unfair, unlawful, wrongful and fraudulent business practices' contrary to a specific code under Californian law.
In Australia, there is no law that specifically prohibits the use of another person's name, image or likeness for commercial gain. However, that does not necessarily mean that Ice Cube would be without recourse if similar conduct were to occur in Australia. In particular,
- Section 18(1) of the Australian Consumer Law would prohibit a business from using Ice Cube's name, image, likeness or catchphrase in advertisements in a manner that would likely mislead or deceive the audience to believe that Robinhood was endorsed by, or otherwise had any commercial association with, Ice Cube; and
- The tort of passing off would prevent a business from using Ice Cube's name, image, likeness or catchphrase to misrepresent the existence of an association with Robinhood, provided Ice Cube had the requisite reputation in Australia.
It should be remembered that Australian courts have previously protected the name, image and likeness of famous figures. Most notably, Paul Hogan successfully deployed similar arguments to prevent unauthorised association with his character Mick 'Crocodile' Dundee, in Pacific Dunlop Ltd v Hogan (1989) 23 FCR 553 and Hogan v Koala Dundee Pty Ltd (1988) 20 FCR 314.
This case is an important reminder to marketing teams: exercise caution when it comes to advertisements that use the name, image or likeness of a person without that person's consent.