Lose the Illusion: Why Advertisers' Use ofDigital Product Placement Violates Actors'Right of Publicity

I. IntroductionJennifer Aniston is a well-known actress who rose to stardom by portraying the fictional character Rachel Green on the popular television series Friends. As she became more of a household name, the commercial value of her identity increased such that companies were willing to pay her to appear in their advertisements or on the packaging of their products. Traditionally, these companies would work with Aniston up front in order to create an endorsement deal suitable to both parties. Aniston would remain free to bargain for her own terms or even to reject advertising contracts outright. When Friends ended, Aniston went on to star in many Hollywood movies and has continued to enter into deals whereby companies use her image to help sell their products. The world of advertising is changing, however, and Aniston may soon help companies sell their products in endorsements which she never approved ofnor even knew were going to take place.Modem technological advances-such as digital recording devices like TiVo, online television episodes, and downloadable shows-now allow viewers to bypass traditional television advertisements and thus watch programs like Friends without commercial interruption. As a result, companies are starting to market their merchandise in formats other than the traditional thirty-second commercial. One such method, digital product placement, can take place without viewers-or actors-ever recognizing that it has occurred. Although product placement has long been used in television shows, usually to the knowledge of consumers and actors alike, digital product placement is a more recent phenomenon that poses many potential problems for actors like Aniston because it occurs after filming is complete. This Note addresses many of these issues and concludes that, if actors like Aniston properly craft their arguments, they can claim that a company's use of digital product placement has violated their right of publicity.Part II of this Note discusses the advent of digital technology that enables viewers to skip traditional commercials and notes how companies have responded by turning to alternative advertising methods such as digital product placement.1 Part III outlines some reasons why consumers and artists may not have much legal ammunition against digital alterations to television shows: (1) past consumer calls for product placement disclosure have failed; (2) the "work made for hire" doctrine of the Copyright Act ensures that television studios rather than actors own the copyright in an actor's performance; and (3) actors currently enjoy no moral rights protection in the United States.2 In Part IV, this Note addresses some of the potential implications of digital product placement and notes a few solutions that commentators have previously suggested.3 Part V, however, points out that despite these suggestions, digital product placement is growing ever more beneficial for television studios and advertisers but provides no corresponding benefits for actors.4 Thus, in Part VI, this Note provides an overview of the right of publicity in order to determine whether actors can rely on this doctrine to fight troublesome digital product placements.5 Part VII evaluates whether the Copyright Act preempts an actor's state law right of publicity claim and concludes that in certain situations, it does not do so.6 Finally, Part VIII concludes that to bring successful right of publicity claims, actors will have to sue the advertising companies instead of the television studio. Doing so will ensure that actors avoid federal preemption, while guaranteeing that they receive some recourse in light of the onslaught of digital product placement.7II. Digital Advances Have Forced Companies to Rely on Nontraditional Advertising MethodsThe last century has seen technological growth in nearly every realm of life, from the birth of the Internet to electric cars to satellite radio. The world of television has experienced numerous technological advances as well. …