Humphrey Bogart 'Casablanca' Photo on Facebook Prompts Lawsuit Against Burberry

9:11 AM PDT 5/3/2012 by Eriq Gardner

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The clothing retailer says it has a First Amendment right to tell the history of its brand, and that the use of Bogart's photo is not a commercial exploitation of the actor.

The owner of Humphrey Bogart's name and likeness is being sued by UK outerwear retailer Burberry LLC, which says it is under legal threat for posting a picture of the actor from Casablanca on Facebook wearing one of its trenchcoats.

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Burberry says it created a historical look at the evolution of its products dating back to its first store opening in 1856 and posted the images through social media, including on Twitter and Instagram. The retailer says it licensed a photo from Corbis of Bogart in the final scene of the 1942 classic film and intended to use it to illustrate on its Facebook "timeline" the "long history, significance and influence of Burberry fashion in society."

But after being contacted on April 10 from Bogart LLC, the retailer filed a lawsuit on Wednesday in New York federal court seeking a declaratory judgment that its use is permitted by the First Amendment.

Bogart's licensor is asserting that use of the image of the famous actor is a violation of both trademark and publicity rights, enjoyed by the estates of many celebrities even after they pass away -- depending on where they were lived at the time of death.

Burberry, however, says its use of Bogart's image isn't commercial, and that it isn't directly connecting the photograph to the sale of any merchandise, "but rather was a historical positioning of the image within an educational project along with numerous other photographs of people wearing Burberry apparel over the last century."

In a case that might explore the boundaries between commercial activity and editorial activity in the age of social media, Burberry asserts that it has a right to tell the history of its brand through a historical timeline, that the reference to Bogart is "squarely protected by the First Amendment," and that no representations of endorsements or affiliations from and to Bogart have been made.

Bogart LLC is among several entities, including estates managing Marlon Brando and Marilyn Monroe, that vigorously protect their purported publicity rights. Bogart's entitity once sued the makers of a sofa that shared Bogart's name. That case, filed two years ago, is still ongoing.

The latest complaint, filed by Michael Allen at Steptoe & Johnson, can be read here, courtesy of PaidContent.

E-mail: eriq.gardner@thr.com

Twitter: @eriqgardner