Dua Lipa, Samsung and the Question of Why It Reached Litigation

The singer is suing Samsung in California for at least US$15 million over the alleged unauthorised use of her image on packaging for Samsung televisions. According to the claim, Samsung used a backstage image of the singer in a way said to suggest endorsement or association. The lawsuit is also reported to include claims relating to copyright infringement, false endorsement and publicity rights.

One interesting aspect is that the image itself was allegedly owned by Dua Lipa. So this is not simply a “celebrity likeness” case. The actual photograph appears to have been her copyright work.

The reports also suggest Samsung had been asked to stop using the image and did not do so. Samsung has since released a statement saying it believed it had the rights to use the image, stating that it had received “explicit assurance” from a content partner that the necessary permissions had been obtained.

Presumably, on receiving a complaint letter of this sort, the first thing Samsung would have done is contact the partner who supposedly granted the consent and ask whether it was absolutely certain the relevant rights existed. Did the partner double down and say it was fine? Did it provide further documentation? Did Samsung ask for it?

There is also an important distinction between using footage that merely happens to feature a celebrity, and using a celebrity’s image in a way that appears to suggest endorsement of a consumer product.

That is before even getting to the copyright point.

Pretty much any lawyer could tell Samsung that it would likely face a difficult copyright infringement argument if it did not have either a direct or indirect licence from Dua Lipa to use that image. It therefore seems unlikely Samsung would simply take no action at all in the face of these complaints unless it had received some fairly robust assurances about the right to use the image specifically.

A crucial question is what discussions took place between Samsung and the content partner after the initial complaint was received. Presumably Samsung would have sought further evidence as to the rights the partner purported to grant.

Samsung’s public statement is also notably equivocal. It says Samsung received “explicit assurance” that permission had been obtained, before separately denying allegations of intentional misuse. Reading between the lines, the position almost seems to be: Samsung was told it was fine, it now realises it may not have been, but at least it was not deliberate.

Jonny Harris, Strategic Communications Partner at Level, commented:

“From a communications perspective, this looks like an avoidable own goal. The problem with a statement like this is that it opens up a second front. Once the company says it had ‘explicit assurance’ from a content partner, the next questions are obvious: what exactly was Samsung assured, when was that checked, what was it told after the complaint was made, and why did the product apparently remain on sale?

That is where early public statements in litigation need to be handled with real care and with a clear view of where the dispute may go next. There is always a temptation to reach for a quick reassurance: we believed we had the rights, it came from a partner, there was no intentional misuse. All of that may be true, but if the documentary position has not been nailed down, the statement itself can quickly become part of the dispute. The external story then moves from a rights issue to a judgment issue: not just whether Samsung had permission, but whether the complaint was handled with the grip and seriousness expected of a global brand.”

As with many disputes of this nature, the expectation will probably be that the matter settles out of court.

The more interesting question may be why that did not happen much earlier.

Adapted photo: Harald Krichel / Wikimedia Commons / CC BY-SA 4.0