How marketers and PR pros can avoid Fiji Water’s legal trouble

The water company had a viral marketing win, but it all unraveled when it couldn’t secure an agreement with the model behind the stunt. Here’s what marketers must know.

If you don’t have your ducks in a row, a successful PR campaign can end in a lawsuit. Just ask the brand managers behind Fiji Water’s Golden Globes promotion.

For those who did not watch the awards show, Kelly Steinbach (stage name Kelleth Cuthbert) went viral after Fiji Water hired her as a red carpet promotional model. Dressed in a sleeveless blue gown, which complemented the Fiji Water bottle design while contrasting with the red carpet, Steinbach got her 15 minutes of fame. On behalf of Fiji, the official water sponsor of the Golden Globes, Steinbach, armed with a tray of Fiji Water stood in a strategic position on the red carpet, passing out Fiji Water to celebrities.

Over the course of the evening, Steinbach began “photobombing” celebrities as they posed for their promotional shots—staring straight into the camera in the background of the photographs. While many young women were hired for the same gig, Steinbach’s attention-grabbing skills were singular, and the internet (if not Jamie Lee Curtis) was charmed. The resulting pictures, punctuated with Steinbach’s wry half-smile and deadpan stare, went viral.

The images, shared countless times on social media, resulted in free advertising for Fiji each time the images were posted, and reposted, by the public at large. Fiji likely received millions of dollars’ worth of free exposure, and Steinbach—branded as the “Fiji Water Girl” by her new fans—became a household name.

Legal controversy

Fiji was pleased with how the evening unfolded — but not Steinbach. On February 8, Steinbach brought suit against Fiji and its parent company, the Wonderful Company, LLC, claiming that Fiji exceeded the scope of the license she had granted it to use her photograph, likeness and identity at the Golden Globes.

The complaint claims that, after the success of the Golden Globes stunt, Fiji created cardboard cutouts of Steinbach to further promote Fiji, but did so without obtaining permission from her for this new use. The complaint also alleges that the parties negotiated back and forth post-Golden Globes, but were unable to reach a binding agreement.

Steinbach brought her suit on a right of publicity theory under both California statutory and common law. In her complaint, Steinbach claims that, even though she is the subject of the viral meme, Fiji has already applied with the U.S. Patent and Trademark Office for the trademark “FIJI WATER GIRL” in connection with drinking water and promotional services.

The complaint also alleges that Fiji received some 12 million dollars of brand exposure from the campaign, and requests damages to be determined by a jury.

Fiji didn’t take the complaint lying down. It recast Steinbach as a greedy opportunist and brought cross-claims against her for breach of contract, breach of oral contract, promissory estoppel and false promise under California law. Fiji claims that Steinbach was offered and accepted $90,000 to be a Fiji brand ambassador, but reneged and, in turn, tried to extort nearly half a million dollars from Fiji.

Specifically, Fiji claimed that in the days after Steinbach’s red carpet debut, Steinbach had agreed to become a Fiji brand ambassador and signed a binding agreement to that effect. When Steinbach was presented with the cardboard cutouts of herself, which Fiji claims she loved, she took photographs with the cutouts and distributed them on her own social media accounts. The posts, Fiji claims, are now deleted. As a result, Fiji alleges that its goodwill was damaged, and it had to go to significant expense to remove the cardboard cutouts from retail locations after the lawsuit was filed.

How to consider the right of publicity

The right of publicity is a concept that is rooted in state privacy laws, and also borrows concepts from both copyright and trademark law. It recognizes the right of individuals to protect against the commercialization of their name, likeness or persona without their consent.

Many incorrectly assume that right of publicity laws only protect famous people, however the famous, the infamous and your average Joe or Jane could all potentially bring causes of action under a right of publicity theory.

Right of publicity laws vary greatly by state. In states that do recognize the right, either through common law or statute, individuals may have a legitimate claim if they can demonstrate that their name or likeness has some commercial value. There are numerous ways for everyday people to make money off of their name and likeness (think YouTube “stars,” influencers and social media “celebrities”), and the potential for right of publicity claims is only growing.

Courts also are increasingly open to entertaining new or novel theories that arise in the age of viral social media marketing campaigns.

What PR and marketing pros should consider

Viral fame is both unpredictable and fleeting. Fiji has planted young women in blue dresses at red carpet events for years as part of its marketing strategy, but something about Steinbach’s performance at the Golden Globes caught the internet’s attention in an unforeseeable way.

As Fiji discovered, it is easier to negotiate permission with talent before a meme goes viral. When the company realized that Steinbach was becoming part of the zeitgeist, it quickly scrambled to secure the additional rights it needed from Steinbach in order to safely capitalize on her viral fame.

What marketers and brand managers learn from this lawsuit is that technology and social media can catapult an otherwise unknown individual into virtually instant household recognition, and that it is easier (and less costly) to secure right of publicity permission from the individual in advance. Once a campaign has demonstrated its staying power and value, the individual will hold most of the cards (or in this case, bottles of water).

Before arranging for or sharing images of talent or third parties (including employees and customers) in connection with a marketing campaign or promotion of a product, consent should always be secured in writing. Again, right of publicity laws are state-specific and they vary significantly. Current best practice dictates that your talent agreement should accurately reflect the right of publicity and other relevant intellectual property laws in your jurisdiction.

Moving forward, your form agreements for talent, employees, customers or any other person whose right of publicity you expect to commercialize should contemplate the possibility of viral internet and social media fame.

Peter Wakiyama and Christine Weller are attorneys in the Intellectual Property department at law firm Pepper Hamilton.

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