It’s been a while since I wrote my last Subway Series blog post.  Frankly, I just wasn’t seeing any subway ads that really moved me, at least as an advertising lawyer.  (Tinder’s “It Starts With A Swipe” campaign is graphically interesting, and kinda sexy, but not a lot going on, ad law-wise.) 

But this! This! StreetEasy has a subway ad campaign running that highlights – with beautiful Renaissance style paintings – the home buying journey in New York City. It’s not only fabulous creatively, but it also got my attention as an ad law nerd. The ad featured below, in particular, caught my eye, not only because it refers to my own neighborhood, but it features -- off to the side of the main action (the couple with their babies) --  a person who brings to mind someone very familiar to me: the man on the bike with the basketball on his head.  I have personally seen a man like this on many, many occasions, and often with objects on his head much larger than basketballs.  The real man-on-a-bike is indeed a recognizable local celebrity, at least to some New Yorkers. 

So that got me wondering: is this image distinctive enough to be considered a use of the real man’s likeness, triggering his right of publicity, which would protect him from the commercial use of his persona without permission?  The painting shows the man from behind, with just an oblique view of part of his face, but it seems pretty clearly a reference to the real person, a person known to at least some New Yorkers.  Does that raise a right of publicity issue under New York law or elsewhere?  

Ad lawyers will likely recall a campaign that featured a naked cowboy character: there, the ads showed the company’s product dressed in underpants, cowboy hat and boots with a guitar, but not the likeness of the actual Naked Cowboy who entertains tourists in Times Square. Although the Naked Cowboy initially sued on a right of publicity theory, among others, the court dismissed that cause of action.  The Court determined that the ads did not give rise to a claim under Sections 50 and 51 of the New York Civil Rights Law because the ad did not use the cowboy’s “portrait,” just his character and accoutrements. (The case proceeded on a Lanham Act false association theory and then settled.)  Does the StreetEasy ad use the man-on-bike’s “portrait” --- even though he’s depicted from behind – in a way that the naked cowboy ad clearly did not?  And what if the campaign used neighborhoods and recognizable characters in Los Angeles rather than New York, and a claim were brought under California’s more expansive right of publicity law? 

While pondering these questions, I read an article about the campaign and learned that it incorporated many  recognizable New York figures and that the brand and its agency worked hard to get permissions from them, including from the man on the bike. Smart move. So I can now enjoy the campaign without fretting about rights of publicity. It’s a good reminder, though, that even if there are potential defenses available when using an image that perhaps just conjures, rather than replicates, a real person, it can be easier in the long run to obtain a release.