Boston Red Sox slugger David Ortiz may have tweeted the selfie to end all selfies when Samsung shared his snap of him and President Barack Obama. But aside from it stirring up a brouhaha among White House lawyers, it highlights how much social media complicates the right to publicity.

“Some of the broader issues of the social media space, including Twitter, has to do with the fact that some people are used to using these services privately as individuals, and they have a whole lot more latitude than companies,” said Gonzalo Mon, advertising attorney and author of Ad Law Access.

Ortiz's Selfie with President Obama
Ortiz’s Selfie with President Obama

Ortiz’s photo from the Red Sox’ early April White House visit went viral when Samsung retweeted it since it was taken with one of their phones. Ortiz has an endorsement deal with the Korean phone company, but he insists that he didn’t intend that the selfie be turned into a viral campaign. While it’s unlikely that the Obama administration will take legal action for being inadvertently tied to a marketing ploy, the White House has publicly objected to the commercial use of the photo.

“When Ortiz takes a picture and posts it, I think he’s doing it as an individual,” said Mon. “In his personal capacity, it’s probably going to be fine, and you may have seen that the Obama administration didn’t object to that. Their objection was to Samsung’s use. Part of what the issue is from the right of publicity perspective outside of the president – celebrities get paid a whole lot of money to promote a product.”

That’s the sticking point for this photo and any shared social media content of someone famous. The Obama administration has always been against the president’s image being used for commercial purposes both online and off, but while the White House isn’t inclined to litigate, others may not be as forgiving. Mon noted that there is a gap between how famous folks and their likeness are used on personal and business social media platforms.

“There are slightly different rules and risks between an individual’s social media use and what they can do, and what a company can do,” said Mon. “That’s what complicates it, and people treat one the same way as they’d treat the other. Sometimes when you’re trying to educate companies or employees about that, they might say ‘look, you can’t tweet a celebrity’s image,’ and there’s some resistance to that because as an individual with a Twitter account, you can retweet that because it’s a great picture. There the Obama administration is not going to care. When a company does it [the administration’s] concern is that it’s somehow endorsing Samsung.”

What social media blurs is also the matter of consent. While it’s easy to to tell someone that they can or cannot tweet a photo, there’s no way to tell the wild west of the Internet to do the same. It’s difficult to capture someone’s intentions in a photo and 140 characters, which exposes one of the loopholes in the state statutes on the right to publicity, according to Doug Baldridge, an attorney who specializes in commercial and publishers’ rights litigation at Venable.

“What did the president consent to there? The president consented to having his photo taken with David Ortiz. He didn’t consent to using his likeness to market Samsung products. So you get into a blur over what was the scope of the consent. Is it the consent to the photo being take itself or was it the consent to it being used in a commercial way?” said Baldridge. He also said that there is an ongoing push to establish a federal right to publicity statute to close some of the loopholes in the state ones.

Even if a suit is able to establish that a personality didn’t give their consent, there’s still limits to the success of their case. Billboards with an unlicensed likeness can be taken down and tv ads can be taken off the air. Retweets can be unshared by a single account, but after something has been passed on either once or over 500 times on Twitter, it’s going to stick around.

“It does live forever … and that is one of the major problems [of social media],” said Baldridge. “You’re almost left with a celebrity being put in a position of doing nothing about it. Once you file the lawsuit and make more of an issue of it, it gets proliferated more and more, and it just never goes away. It’s very difficult to stop these things. Getting into one of the [social media] organizations and trying to stop this is almost impossible because they don’t sponsor the material. It’s an endless cycle, and sometimes the only way to deal with it is to just flat ignore it.”

Mon shared similar sentiments and said that someone could seek additional damages to make up for their image living forever online.

“It’s a fair point that it’s going to [still] be out there and other people will have copied it. I think that when a celebrity is talking about damages, that’s one of the things that they would include that it’s still out there,” said Mon.

Baldridge said the threat of potential litigation, however, doesn’t bother some businesses that want to go viral. As an example, despite the White House’s protests, Ortiz’s photo can still be found on Samsung’s Twitter feed.

“Do businesses know that they’re pushing the line? Absolutely, and there’s nothing better than free publicity.”