After watching a very exciting Super Bowl the lack luster commercials left me wondering what happened to all the funny commercials, and how was #Dodge able to use Martin Luther King Jr.’s voice to sell Rams. King stated in the ad “we recognize that he who is greatest among you shall be the servant.” He continued by stating this “means that everybody can be great,” while showing a scene of a student, athletes, a teacher, a cowboy, fishermen and professional heroes including firemen, #Marines, and a nurse. According to the FCA they worked close with King’s estate and received permission to use his voice during the ad. So, the real question is why did they need to get King’s estate’s permission.
There are two distinct legal claims that can potentially apply to this kind of situation: (1) invasion of privacy through #misappropriation of name or likeness (“misappropriation”); and (2) violation of the right of publicity. (The “right of publicity” is the right of a person to control and make money from the commercial use of his or her identity.) In order to establish a misappropriation claim and hold someone liable the plaintiff must:
1. Show that the defendant used an aspect of his or her identity that is protected by the law, meaning their name, likeness, voice, and other personal attributes;
2. Show that the defendant’s used the name, likeness, and other personal attributes for commercial purposes; and
3. There was no permission given.
However, consent is a complete defense to this type of legal claim. So, with King’s estate’s consent Dodge had full legal right to play recordings of King’s voice within the commercial.