Social media posts featuring an image of Humphrey Bogart wearing a Burberry trench coat in the final scene of Casablanca were not “the beginning of a beautiful friendship” between the fashion retailer and the award-winning actor. Burberry Group Plc. and representatives of the late Humphrey Bogart have filed dueling intellectual property lawsuits over the rights to the image.
After receiving a cease and desist letter, Burberry sought a declaratory judgment that its use of Bogart’s name and image does not infringe Bogart LLC’s trademark rights or rights of publicity. Meanwhile, Bogart LLC has filed a trademark infringement lawsuit in California state court in Los Angeles.
As Bloomberg reports, Burberry contends that it licensed the image from photo agency Corbis. The picture was intended to illustrate on its Facebook “timeline” the “long history, significance and influence of Burberry fashion in society,” according to the company. Thus, Burberry maintains that the image wasn’t used to sell merchandise and is protected under the First Amendment to the U.S. Constitution. Its use of the image “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,” Burberry said in its complaint.
Meanwhile, Bogart LLC alleges that Burberry’s “use of Bogart intellectual property rights in their marketing and promotion materials and in products were for the express purpose of commercially linking their Burberry brand and products to the persona and character of Humphrey Bogart in the minds of defendants’ potential and actual customers.”
This case will be interesting to watch because it will shed light on exactly what constitutes “commercial use” as opposed to “editorial use” in the context of social media. Please stay tuned for updates.