False endorsement and the multi-million-dollar battle over celebrity likeness | Commercial Awareness Compass #74

Everyone and welcome to all about Laws, commercial awareness compass, your weekly guide to thinking like a commercial lawyer. So in each episode, we take one major commercial story and break it down across three different levels, beginner, intermediate and advanced so that you can build your understanding step by step. So this isn't just about following headlines, it's about understanding how legal issues intersect with business strategy, reputation and risk. And that's how lawyers help clients navigate all of that in practice. I'm Fahika Chowdry, a future trainee and career changer. And today I'm joined by Henry Nelson case, a lawyer, content creator and someone who's become well known for making complex legal topics accessible online. Henry, it's great to have you with us today. Before we dive into the discussion, it would be great to hear a little bit about your legal background and how you got into content creation alongside your legal career. Yeah, sure. Thank you for appreciate that. Thanks for having me. Hit today. I think it's selfless. So together, which is, which is fun. So yeah, in terms of my legal career, I qualified back in 2018 and private practice and then transitioned into a in house role and subsequently started practicing as a consultant lawyer. And now was two, three weeks ago actually. I am a non-practicing lawyer, which is really interesting to now be kind of. So I guess legal adjacent law adjacent, I can still involve in the legal profession, but I'm not doing my charge of allow us every single day, which makes a refreshing change. Brilliant, very impressive indeed, of course. So onto the episode today's topic sits at the intersection of intellectual property, branding, media and commercial risks. So the recent dispute between do leap and Samsung. So do leap has reportedly filed a multimillion dollar lawsuit alleging that Samsung use her image on television packaging without her permission, raising questions around image rights, false endorsement licensing and reputation or expose our Samsung. Meanwhile, I have said that it relied on assurances from a third party content provider that the necessary rights had then been secured. So as we go through today's session, I'd like to encourage the audience to think about how each level builds so at the beginning stage or focus on the key legal foundations at the even to media stage will then connect this to the commercial advice and business risk. And at advanced will think strategically about the future of image rights and digital risk. Let's start by unpacking the basics of what actually happened here and why this dispute matters commercially. So starting with the core facts of the dispute. Henry, what exactly is do you believe are alleging that Samsung did wrong here? Yeah, so do you believe her is alleging that Samsung are basically using her her image on the packaging for a few TVs that they are shipping and that this has been done without her permission. And I think for context, there's there's a lot of discussion around this coming off the back of the fact that Samsung originally pulled away from working with Duelie, but based on some of her political opinions that she'd expressed. So there was kind of a disdain in that relationship already and she is now alleging in making claims around sort of copyright infringement trademark infringement and also the misuse of her image and likeness. But as you kindly mentioned, Samsung have said, well, hold on a minute. You may be bringing this claim against us, but actually the contract, the third party provider that we used for the packaging, or whatever it may have been. They actually already got permission to use the images that have been used on the packaging, the box. So if you've got an issue, then actually any issue sits with them. Not us, we are just kind of relying on what they say. And I think this kind of will get into this, but this kind of goes to the kind of contractual relationship between the parties and also the commercial value of sort of celebrity endorsements, celebrity identities. And also in terms of intellectual property rights, third party intellectual property rights and what kind of protections companies can use to kind of mitigate should they have a claim of infringement on a third party's intellectual property. Thank you for that overview. It seems like there's a multitude of things to consider from each party's point of view. What's really interesting is that this isn't just about a photograph. It's actually about the commercial value attached to celebrity identity and endorsement. And from Samsung's perspective, how significant is the fact that they say a third party supplier assured them the rights had been cleared. Yeah, I think, but firstly, it kind of mitigates any financial risk that they may help because if say, for example, let's just say I have a contract, let's say I'm Samsung, you're doing a deeper. And I part of this third party who does all of my packaging my PR and stuff, I have a contractual relationship with them. And usually those kind of contractual relationships when you're providing a service of goods, whatever it may be, you have a section that covers intellectual property and third party intellectual property rights. So my contract me a Samsung, I would like to think and I'm sure there is. And this is where the lawyers will step in and double check this. But there would be a third party intellectual property and demnity provision in there that says Should a third party you do a leap up, bring a intellectual property and fringe my claim against me. You will indemnify me third party because you have assured me you've given me all assurances that you have got all of the necessary as Samsung has claimed here. All of the necessary permissions. If that isn't the case and I get sued by you to a leap up for whatever amount of money it may be, you are to indemnify me for that. You're on the hook. And that's what we would expect the The contract to say that you're completely right in a sense that it may just be to some image is just somebody's picture, but actually it really goes to show the commercial sort of value that that picture has that asset because a lot of people think, "Helly, well, that's do a leap up." Like I like her. I like the music of she's in this TV and buying this TV. I want to buy this TV. Conversely, do her and her team could be, so do a leap up sounds funny saying just do her. Do her and her team could be negotiating commercial agreements with, I don't know, another TV manufacturer to Shiva. And in that cause that my in that contract it may have exclusivity provisions to say, you can't use your image in any other electronics TV manufacturers packaging, PR, whatever it may be and doing so that could be could constitute under the contract material breach. So by sampling using this, do a leap up could in turn be breaching her other contracts. So there are huge implications around how a celebrity or a person in the public eye images use. And the value of it, those kind of intellectual property assets actually have more than just monetary. Brilliant. Thank you. And thinking commercially, you've touched on a lot of the points that lawyers can then do to mitigate this, but why especially is celebrity image rights so valuable to businesses in the first place. I think just because of the money that they can help bring in in kind of the you're basically saying we're duly for space on this box. She is endorsing this product. She thinks this is a good product. This woman's worth X number of million pounds. She has a fan based. Sorry all over the globe that that is going to sell more products. And that's why huge company spend loads of money on this. So it's very important that celebrities and people in the public eye. In terms of their intellectual property portfolios, they are being guided by lawyers. They are making sure that whether not being used properly. Actually, we take action against this because that's duly because brand and that company may be doing things that she perhaps doesn't want to associate herself with. Is not good for brand is not good for her reputation. So we need to take action against it. And we might touch on this more in the advanced stage, but is things kind of celebrities like this can be generated through AI and stuff now as well. That adds a whole additional layer in terms of celebrity endorsements and what's real, what's faking is that person that just kind of looks like that person. Is that actually that person and would people like to think that that's actually it may be an AI image of dual, people assume that so let me get into whole host of other issues. So it's really important. And the teams for both Samsung and do a leap will be reviewing because ultimately do a leap is going to the team will be going after Samsung. They don't care about the party relationships. That's Samsung's problem. It's on Samsung's box. The Samsung's TV that's who it comes with. But I think I remember that when I was having a read around this the other day in terms of bringing the initial claim. The way that during a team came across this was through like scarring comments on TikTok. They saw that she was being tagged in it and all of these other fun things and that's what they actually use. It's kind of evidence around this which I think just goes to show the extent of celebrity endorsement in kind of the power of it. Thank you and that implied endorsement point is quite critical here. Consumers often associate a celebrity image with trust approval and brand alignment and she obviously was not in the know about it if she was came across it on scrolling on TikTok. So yeah thank you for covering that. So we'll now move beyond the headline dispute itself and think about the practical commercial lessons. Lawyers and businesses should take from this into the advanced and intermediate section. So in the intermediate section from a transactional perspective what does the rights clearance actually involve in situations like this? Yeah so Samsung have been quite insistent on the facts that they were assured that all of the relevant rights had been secured and obtained and of course that would be for the lawyers to be assisting on that inter assist. Samsung before anything went to that the parties production basically ended up on the shelves. So there's clearly been somebody stopped before somewhere and somebody said we've got the license for it and we don't. So that process needs to be followed and if it's not being followed this is where we have the exposure for or the risk exposure where we could potentially be sued and I do think there was problem I think where there's ever kind of any doubt or you're not 100% sure that don't do it because the financial risk of being sued and the backlash because this is all over TikTok this is all over the news. The brand damage reputation it can have is a lot more than just money. So making sure that lawyers want to be working with their clients to make sure they've got the appropriate like clearance processes they've got things in place to say we have a license to use this and this capacity we don't have a license to use in this and just making sure that actually they know what the scope of that license is for sure. Yeah so the damage is quite severe just even beyond the financial means side of things it's a great reminder that using content in one context doesn't automatically give permission in every commercial use and in median advertising deals why do disputes often arise around the scope of a license? It is exactly that because you may think you've got a license to do one thing but actually you want to do something else and your license doesn't cover that. So obviously if you want to use somebody's image or you want to expand your license that's going to cost you more money so commercially you need to know what the scope of what you can and cannot do. And then as we touched on briefly earlier as well sorry you see that when we are using third party intellectual property we want to make sure we've got the relevant warranties we want to make sure that we've gotten damnalities so if we're being sued by a third party because their rights are being breached we've got somebody who we can go after because we were told that third party had done all of their due diligence we were told that they obtained the relevant licenses and the clearances. Learn what they have because we're being sued that's not our responsibility arguably to have done all of that background check that's why the third party was here that's not our fault we they're on the hook so that's why we want to make sure that liability allocation is very clearly documented. He may get into negotiations in a lot one of the biggest things that kind of get negotiating in contracts is indemnities and liability caps and do they sit within the same remit as an indemnity uncapped liability that's like discussion for the parties but ultimately we want to make sure that we've got that Ipossumsum that we've got that indemnity and because as we mentioned earlier to Aleepa doesn't care who's paying it that to somebody's got to pay for it because they're using her brand and her name and her likeness in an environment and situation that they they shouldn't be and they don't have permission to be doing so. So it's starting to feel like a classic commercial drafting issue the ambiguity around usage rights and can become incredibly expensive quite later on. So turning to contracts and risk allocation what role do warranties and indemnities for example play in disputes like this? Yeah I think the first thing we're going to look at is the Samsung's law is the first thing they're going to do is go straight to the contract because to our knowledge we've had all the relevant assurances that actually they should have done the checks clearly they haven't because we're being sued we can't argue with that the claim is coming our way what can we do to mitigate our risk? Okay firstly we want to check what warranties that we've got in there we've got a breach of warranty x1z we can we've got certain remedies with a breach of warranty but the best thing we've got in here is that indemnity we've got that third party indemnity rights provision for intellectual property. Generally more often than not I find that in contracts when you have a specific indemnity for say usually data protection and intellectual property that generally uncapped which is great for Samsung but probably not great for the third party because the size of this claim that's coming for them could be quite a quite a stinker but we want to check that we've got that so now you don't have to if we're going to go after the third party arguably now we've got this indemnity we don't have to give you the whole process of bringing a claim and satisfying all the elements of bringing a claim we've just got this indemnity now so we can just say you're on the hook here's the claim and in a lot of indemnity provisions the third party may also have like provisions around how the indemnity operates itself the third party may want conduct of claim which is a provision that essentially says okay fine we're on the hook or pay for this but we want to manage the claim and then their lawyers will get involved as well so that's that's like the main smoking gun that Samsung will want to make sure that they've got in place and I'm sure a company's size of Samsung has that so that allocation of liability becomes commercially crucial where multiple suppliers and intermediaries are involved so looking beyond the pure IP law could dispute like this also raise advertising or consumer protection concerns yeah absolutely we've got the ASA and the relevant cap codes here in the UK that celebrity is influencers people in the public I all need to be adhering to so say for example the packaging to my knowledge I don't think this is the case but if the packaging falls foul of the advertising standards like rules and regulations with the endorsement of dual leaper dual leaper could be on the hook for being in breach of the ASA with a partnership with Samsung but actually it's not a partnership they're not working together her images of the youth being used without her consent you've also got PR and reputational risks as well as we touched on we're seeing sort of implied all my global false endorsement because she hasn't endorsed it and if that's a company that's doing things has been known to be doing things that isn't great for example let's take Amazon and they're used to sort of they're not great with treating their workers if somebody's being associated with a company like Amazon that makes them look bad that makes them look like an artist that doesn't care about its founders doesn't care about people doesn't care about whatever it may be so if Samsung's got anything like that that negatively impacts dual leaper which in turn for the factor of themselves could affect to a tour sales could affect collaborators musicians wanting to work with her which negatively impacts her career so then that's going to be part of the discussions as well around this it's not just the you're using my IP without my permission there's a whole host of other broader commercial concerns it could impact her career brilliant and that false endorsement anger is especially interesting because consumers may genuinely believe a celebrity approved that product so moving on to the advanced level we'll move it into more the strategic territory so where commercial lawyers think not just about the current disputes but about future business risk and the evolving legal framework so let's look at the bigger commercial picture our celebrity image rights increasingly being treated as valuable IP assets in their own right 100% there is so much value in like a celebrity and influence a public figures name being attached to something somebody's brand is worth sort of so much value and that'll be for the lawyers to work with them in terms of how do we license our name how do we license and let's take do really was like cool celebrity but even brands like the the breakdown cover. Their whole, like, brand value is huge. So what they attach their name to is that it's a household name, anything like a household name carries so much value. So lawyers will be needing to kind of advise on how do we license or how do we structure a license to what extent do we grant a license, non-transferral or exclusive, can it be used worldwide or can it just be used in the UK? What are the endorsement arrangements? There is so much value in that and I do think reputation, brand and sort of name is a, like, extremely valuable commodity and that's something that celebrities and influencers aren't becoming more aware of in terms of to whom and to what they attach their name to and also brands like Samsung or whoever are paying more for it because of its worth. Brilliant. So it's starting to feel like personal branding is now being managed, almost like a corporate intellectual property portfolio and from a lawyer's perspective, what kinds of advice might clients need around monetising or protecting image rights? I think we're possible and where the rights are registered or getting assistance around registering the rights, where rights are unregisterable, having knowledge around that and to what extent they can be used. Having somebody assist with your sort of your portfolio of intellectual property rights, having sort of somebody who's able to negotiate the value of the McKay and we speak about licenses a lot. What does that license look like? How are we structuring it? Obviously a license that's worldwide and can be used worldwide is worth a lot more than one that's like, reasonably limited. What happens when the license expires? What if the brand that you've given license to suddenly starts going crazy, unilongable, won't you want name being attached to them? How we've got provisions in our license that say when they do something like that, can we terminate the license? And just a whole host of things that you have to think about that you may just think in a sort of whimsy manner, always just to face on a box, but actually the implications commercially are so much broader than that and that's the role of IP lawyers, commercial lawyers that need to be advising on this. Thank you for that helpful breakdown. So this is where commercial law becomes deeply strategic, protecting reputation is now directly tied to protecting revenue. So looking ahead at emerging technology, we'll slightly pivot here. How could AI and deepfakes complicate disputes around image rights in the future then? Yeah, I think I don't think at the moment, let's start again, I do think we are going to see more complications around the extent of AI and deepfakes being used because they can be incredibly convincing in terms of what they look like. And then it can create these sort of false, these implies endorsements that don't actually exist, but I do think we are going to see an increased pressure for a kind of regulatory overlord in terms of the the the remit around us, the image rights positioning and just how those those kind of rights look and whether or not if there's a deep fake or an AI version of Deweleeper, can she still bring a claim? What does the law look around that? And it'll be a case of the law playing catch up as this kind of develops. I do think that we're seeing a lot of like influences that have millions of followers, but the influencer isn't a real person. It's just like an AI that's created, it's got a personality. And I think when we start seeing things like that, who owns the IP around that, is it let's say it was created through a chat GPT just for one of easy example. What's a chat GPT's term say, who owns the IP in that digital influence? So is it the person who created it? Is it the LLM actually created it? So I do think we're in for an image rights sort of reform. And again, it's one of those stories that's really interesting texts at the forefront of a lot of firms at the moment. So it will be a story for those in this that are interested in this that can follow along and create like a really interesting commercial story for interview. Thank you. That raises some genuinely difficult questions around consent, authenticity and digital identity. So finally, thinking operationally and given how complex media supply chains have become particularly seen in this dispute, why are audit and systems of compliance becoming more important then? Yeah, ultimately you want to make sure that any images or like intellectual property rights for third parties that you're using, you have the rights to use them. You have permission to use them because if you don't, you're going to get slapped with a lawsuit. So you want to make sure that the checklist, the compliance, the audit sort of systems that you have in place are robust that being updated. What worked in 2024 might not now work. In 2026, we want to be overhauling them. We want to be working with our lawyers and because the sort of supply chains, the way things are structured now are so much more complex and now so many more layers. We want to be making sure that our risk, whoever we're advising, is mitigated as much as possible. Thank you. And that traceability piece is becoming critical in a world where content moves across multiple platforms and intermediaries. So definitely lots of things for businesses to think about. So looking ahead, what's the biggest commercial lesson businesses should take away from the doleap part and Samsung dispute? I think in a nutshell, make sure you've got permission before you use anybody's intellectual property rights and if you're unsure, don't use it. Thank you. And ultimately, this feels like a reminder that failures in rights, clearances and risk management can create legal, financial and reputational exposure all at once. Henry, thank you so much for today. That was genuinely fascinating discussion. You've taken a celebrity dispute that many people might initially dismiss as entertainment news and shown how that actually raises major commercial issues around intellectual property, branding, contracts, risk allocation and governance. So for everyone watching, this is exactly why commercial awareness matters. A strong commercial lawyer doesn't just ask what law applies, but they also ask who bears the risk, what did the process fail and what commercial value is being protected. What makes this story particularly interesting for me is that it reflects how modern businesses increasingly revolve around intangible assets. So reputation, identity, content and digital trust, some of the things that Henry has touched on and AI and digital media continues to evolve. These issues are only going to become more commercially significant. Thank you, everyone for joining this week's commercial awareness compass. If you found today's discussion helpful, do share it with someone else on their legal journey and until next time prepare without the panic.