As evidenced by the number of lawsuits on behalf of celebrities, brands need to be careful how they use actors, musicians and athletes in social media.

In his presentation “Legal Watch-Outs For Successful Sponsorships, Promotions and Activations” at IEG 2015, Winston & Strawn’s Jason Gordon discusses potential pitfalls when using celebrities in social media.

Below are edited excerpts from his presentation.

Right Of Publicity: Interacting With Celebrities 
Right Of Publicity: Interacting With Celebrities

What To Stay Away From: Lawsuits by Celebrities

Katherine Heigl and Duane Reade

Katherine Heigl and Duane Reade

Katherine Heigl was coming out of a Duane Reade store in New York. She comes out holding bags, someone snaps a photo and Duane Reade tweets “Love a quick #DuaneReade run, even Katherine Heigl can’t resist shopping at New York City’s favorite drug store.” She sued for six million dollars.

Use of a photo of a celebrity is particularly risky when you don’t have permission.

Michael Jordan and Jewel-Osco

Michael Jordan and Jewel-Osco

Jewel-Osco did a deal with Sports Illustrated where they received an ad in exchange for distributing a special issue of the magazine. The retailer created an ad that congratulated Michael Jordan. The ad has the number 23. It doesn’t include Michael Jordan’s face.

Michael Jordan sued. Jewel-Osco said the ad was congratulatory and not a commercial use. ‘We’re not promoting any product or services.’ The court said ‘no, you’re promoting Jewel-Osco.’

Many companies want to send out a congratulatory ad to be part of the conversation when someone wins the Stanley Cup or the Super Bowl. They key takeaway is that simply congratulating a newsworthy event isn’t necessarily newsworthy in the eyes of the law. You might have to get legal permission or talk to your legal department about the risk because it could result in a lawsuit from a celebrity or a team.

Bogart Estate and Burberry

Bogart Estate and Burberry

Here we have Humphrey Bogart in a Burberry trench coat in Casablanca. Burberry used the image, and his estate sued. The key takeaway is that even if you want to use a celebrity that is dead, you still might have to get permission from their estate.

Sandra Bullock and Toywatch

Sandra Bullock and Toywatch

Even minor uses can result in significant lawsuits. You have this toy watch that Sandra Bullock wore in The Blind Side. A video was placed on YouTube and Sandra Bullock sued. She said, ‘Look, if you’re going to associate yourself with me and that watch, just because I happened to wear it in the movie, you need to get my permission.’

Jennifer Love Hewitt and Marz Sprays

Jennifer Love Hewitt and Marzsprays

Many of us want to engage celebrities by sending them free product with that hope that they’ll say thanks. In this situation Jennifer Love Hewitt received Marz Sprays. She accepted the gift, and they promoted that she used it.

Just because someone accepts a free gift doesn’t mean it gives us carte blanche to use their photo or their name or likeness without permission.

Celebrity Social Media Interactions That Haven’t Resulted In Lawsuits

Miller Lite Tweets After OSCARs Comment

Miller Light Tweets After OSCARs Comment

Matthew McConaughey mentioned his father during his acceptance speech for best actor at the Academy Awards. ‘I know he’s up there right now with a big pot of gumbo, a lemon meringue pie and a cold can of Miller Lite.’

Miller Lite responded with a tweet that said “the official beer of award winning actor’s dads.”

This is evocative content. Content which isn’t the property of another, but which strongly brings to mind a person, image or third-party property.

Miller Lite was super creative. Everyone knows what Miller Lite was talking about, but it’s not using Matthew McConaughey, it’s not using the Oscars, and it’s not using any third-party assets that could sue. It’s simply joining the conversation and bringing it to life.

KFC and LeBron James

KFC and LeBron James

This is a great example with KFC. “I’m coming home with KFC.” This was the reference to LeBron James coming back to play in Cleveland after leaving Miami.  It’s not about LeBron James, it’s not about the Cleveland Cavaliers, and it’s not about the Miami Heat. It’s simply evocative.

Branded Tweet Provokes Change in Presidential Policy

Branded Tweet Provokes Change in Presidential Policy

We sometimes run into risks. We have a situation where David Ortiz did a selfie with President Obama. After the great selfie that Samsung did everyone wanted to be part of the selfie game. But the president cut selfies out of his policy because David Ortiz didn’t do this for fun, he was paid by Samsung. He sort of ruined it for everyone.

A lot of celebrities are litigious. On the other hand you have creative ways that brands have thought about the right of publicity to make sure they could be part of the conversation without infringing on the rights of those celebrities.