Unauthorized Product Placement: Defamation by Implication?

Recmad, an apparently straitlaced company from Portugal, disapproves of the music video for “Danza Kuduro.” Why? Because the artists in the video are shown partying on Recmad’s yacht with a bunch of scantily clad women. In a lawsuit filed in Florida last month, Recmad claims it never agreed to allow the defendants to show the yacht in the music video, and that the video implies that Recmad advocates and engages in a “fast, lavish, over-the-top lifestyle.” Recmad seeks to recover damages for defamation by implication.

The suit, recently removed to federal court, is against UMG Recordings and other music industry businesses and professionals. According to the allegations of the complaint, defendants Don Omar and Lucenzo began filming the music video for “Danza Kuduro” in early 2010 on the Caribbean island of St. Martin. The video features Omar and Lucenzo living the high life with yachts, mansions, fast cars and “women in bikinis.” According to the complaint, Le Reve is “prominently featured in the video,” but apparently is shown only briefly, starting at the 2:15 mark. The video shows Omar and Lucenzo approaching some women on Le Reve, who then disembark to join Omar and Lucenzo on another yacht.

Recmad contends that the video became a worldwide hit, topping the music charts in numerous countries and that defendants have profited substantially through the sale and marketing of the song and video. According to Recmad, the defendants’ unauthorized use falsely implies that the owners of Le Reve engage in “wrongful and suspect conduct.” The crux of Remcad’s argument is that juxtaposition of its yacht with a lifestyle it does not condone resulted in defamation by implication. Recmad claims that it has “suffered damages” but does not specify those damages.

Most cases involving unauthorized product placement tackle the issue from the perspective of trademark law. In theory, unpermitted placement of a product in a music video could result in trademark infringement if viewers of the video might mistakenly conclude the product was made by someone else. In such cases, courts balance the right of the trademark owner to prevent confusion with the performance artist’s right of free speech and expression. These cases rarely succeed because unauthorized product placements usually have some artistic relevance and they rarely are likely to result in consumer confusion.

But Recmad does not allege it owns any intellectual property in the yacht. Rather, it merely alleges that it is the owner of Le Reve and that the display of its property in a music video of arguably questionable taste is damaging to its reputation.

Many states recognize that defamation liability can be based on an implied statement, even if the express statement is not literally false. The issue is frequently litigated in cases against media defendants, as the media often publishes damaging statements about people while being very careful not to make any literally false statement.

But to state a proper claim for defamation by implication, the statement must not only be “of and concerning” the plaintiff, but must be interpreted as a reasonable person would understand it. In these two areas, Recmad’s claim probably falls short. For one thing, it takes a very keen eye to even spot Recmad’s yacht in the video. Another yacht is featured far more prominently than Le Reve. To the extent any statement is being implied with respect to the yacht owners, it seems unlikely that many viewers would conclude any statement is being made about the owner of Le Reve. Second, even if they were to so conclude, it seems even less likely that a reasonable viewer would conclude that the owner of Le Reve advocates or personally engages in a hard-partying lifestyle, simply because three women in bikinis are shown aboard catching some rays. I expect to see this case dismissed promptly.

 

 

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