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Valuing a Celebrity's Right of Publicity Valuing a Celebrity’s Right of Publicity http://www.lawjournalnewsletters.com/issues/ljn_entertainment/28_2/ne... Advertise Our Sites LawCatalog CLE Center LawJobs Newswire Law.com Home IN SORT BY Home USERNAME PASSWORD REMEMBER ME Newsletters Your Account Board Members Calendar Associations Search Archives Email This Article Printer-Friendly Versio n Subscribe FAQs February 2013 About Us Valuing a Celebrity’s Right of Publicity Contact Us By Weston Anson, Lacy J. Lodes, and David Noble Web Audio Conferences Unlike patent, trademark and copyright law, rights of publicity are governed by a patchwork of state statutes and Practice Groups common-law decisions, rather than by a single federal statute. And unlike trade secret law, rights of publicity are not Technology subject to a uniform state law adopted in the vast majority of states. But as with valuing other intellectual property assets, right of publicity (ROP) valuations need to consider the unique characteristics of the subject asset and the Compliance context of the valuation. Business Law Typically, ROP valuations are needed for one of three reasons: when negotiating a transaction (i.e., endorsements, licensing, etc.); calculating damages for ROP violations; or valuing celebrity estates and trusts. Each ROP asset is unique and each of these Litigation contexts varies, posing some unique challenges for reasonable analysis of ROP assets. Law Firm Management Endorsement Transactions Before the opening ceremonies of the 2012 Summer Olympic Games had even taken place, Jamaican sprinter Usain Bolt had collected $20 million in endorsement revenue. After he won three gold medals, online delivery company Shutl offered Bolt a 1% equity stake in the company to headline its new marketing campaign. See, "Usain Bolt Gets Most Awesome Endorsement Offer Yet," Adweek.com, http://bit.ly/Thwypk. A few months before that, the Chicago Bulls signed reigning National Basketball Association MVP Derrick Rose to a five-year extension worth $94 million. However, his new endorsement deal with adidas was by far the largest contract he signed during the season. As the second largest shoe deal in history, Rose’s deal with adidas reportedly included $185 million in guaranteed money over 13 years, with the potential to reach $260 million through incentives; far larger than his on-court compensation. See, "Derrick Rose, Adidas Agree to Massive Endorsement Deal, According to Reports," SB Nation Chicago, http://bit.ly/VREbAW. The trend of corporations looking to celebrities to market their products is nothing new. With the immense popularity of sports, even athletes with average on-field performance may be more recognizable than other celebrities. However, even in highly visible transactions, the future economic benefit and appropriate endorsement fee can be difficult to ascertain. Even after the fact, a concrete determination of worth created through endorsement-based marketing is difficult. And instances of celebrity falls from public grace, such as Lance Armstrong’s recent steroids-use scandal, can complicate ROP valuations even further. Changes in sales trends can provide strong evidence of value generated, but apart from conducting exhaustive surveys, corporations can’t know conclusively if these products would have sold with or without the endorsement in question. Further complicating the matter, preliminary research by CONSOR Intellectual Asset Management indicated a celebrity’s relative level of fame bears little correlation to the amount paid for endorsements. In other words, relying solely on observed market transactions may not provide a reasonable indication of value for analyzing celebrity endorsement opportunities. The Actor Can Become the Brand Unlike athletes who develop intangible assets through on-field performance, entertainers often develop their persona with the portrayal of fictional characters. Despite making only six non-endorsement related television appearances since 1990, according to IMDB (www.imdb.com/name/nm0326091), actor Jonathan Goldsmith has become arguably the most recognizable figure in beer advertising with his portrayal of Dos Equis’ "Most Interesting Man in the World." In other words, a celebrity persona can be created to match corporate marketing objectives. At times trademark laws, designed to prevent consumer confusion, and actors’ ROP come in conflict. Over the course of several years, actor Jerry Lambert appeared in Sony PlayStation commercials as "Kevin Butler," a fictional corporate executive leading the charge to "bring back the glory of Play to gaming." On Sept. 3, 2012, three days after the expiration of his contract with Sony, Lambert appeared in a Bridgestone commercial that promised consumers a Nintendo Wii with the purchase of four tires. Sony is now suing Bridgestone and Lambert alleging the commercial "depicts a Bridgestone employee who consumers reasonably perceive to be ‘Kevin Butler’ promoting the Nintendo Wii, a product that competes directly with SCEA’s PlayStation products." See, "Sony Sues Actor Who Abandoned PlayStation for Nintendo Wii," The Hollywood Reporter, http://bit.ly/W2sNDk. Sony is implying that use of a recognizable face will lead consumers to confuse the Wii and the PlayStation, two heavily branded and promoted products; therefore suggesting even unknown actors can be powerful endorsers. Calculating Damages for ROP Violations The traditional income and market valuation approaches may not provide reasonable indications of value for endorsement transactions. Developing a reasonable valuation in the context of negotiating an endorsement deal may require detailed research, use of multiple valuation methodologies and a thorough understanding of each party’s economic alternatives. Prudent analysis requires consideration of three valuation approaches: the "Cost," "Income" and "Market" approaches. However, in ROP damage calculations for ROP infringements, the reasonableness of each must be evaluated on a case-by-case basis. Market Approach. While this approach provides the benefit of analyzing real world agreements, information available to use in a market approach may be skewed toward large deals, as smaller or minor endorsement deals are rarely publicized. Also, ROP violations don’t involve the time investment associated with a typical endorsement. In other words, when a celebrity’s name or likeness has been used without their permission, the celebrity clearly has not spent time on a film set shooting commercials. Therefore applying announced endorsement deals may skew a damages calculation to an unrealistically high result. Income Approach. The income approach provides the benefit of calculating the present value of revenue derived from use of the ROP. However, it is often difficult to quantify the impact of endorsement-based marketing on sales and profits. ROP damages based on the present value of the infringer’s unjust enrichment would need to demonstrate that the ROP violation actually enhances sales or profits, and as discussed, this connection can be difficult to establish even when the celebrity is 1 of 3 3/12/2013 11:29 AM Valuing a Celebrity’s Right of Publicity http://www.lawjournalnewsletters.com/issues/ljn_entertainment/28_2/ne... permitting use of their ROP. Cost Approach. In the endorsement market, substitution is a tangible option, and in some circumstances media impressions can be accurately quantified. However, calculating the costs to run an equivalent campaign can ignore the public image implications of an unauthorized ROP use. Also, unlike a copyright, a celebrity’s ROP is an exhaustible asset. While it may seem like certain celebrities push the limit (i.e., pre-scandal Tiger Woods), none can lend their name to an infinite number of companies or products. Because one or more approaches may yield indications that are unreasonable for the context of a case or access to information may limit the ability to complete a thorough analysis, a complete damages valuation analysis should include multiple approaches, followed by a reasoned reconciliation of the often differing indications. Analyzing Rights of Publicity Several well-known situations illustrate distinctly different sets of conditions under which analysis of a celebrity’s ROP played a central role. For the many endorsement deals golfer Tiger Woods signed before his now infamous divorce — whether or not a formal ROP valuation was performed by each of the corporations paying Tiger, or by Tiger himself — each corporation believed that the present value of future benefits, driven by their association with Tiger, would be greater than the amount they invested in Tiger. As mentioned above, it can be difficult to connect the sale of products or services to an endorsement-based marketing effort. After the news of Tiger’s infidelity broke, some corporations dropped their Tiger-based marketing efforts, while others continued to use Tiger’s ROP. Notably, the professional services and consulting firm Accenture dropped Tiger, but Nike Golf kept him. While Tiger’s level of fame and exposure certainly increased, the value of his ROP changed. Further, it changed differently for different users. As a golfer, Tiger’s connection to professional services was less strong than his connection to golfing equipment and attire. The value of Tiger’s ROP changed more drastically for the corporation with a lesser degree of connection between its future earnings and Tiger’s ROP. In this context, the income approach to valuation can be used to understand the drivers of endorsement transactions.
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