It is undisputed that Bogart liked his Burberry trenchcoat.
No, wait, I take that back.
He loved his Burberry trenchcoat.
In fact, he loved it so much that he actually wore the same coat in the two films that still serve as templates for how to bring hardboiled detective noir to the silver screen — Dashiell Hammett’s The Maltese Falcon (1941) and Raymond Chandler’s The Big Sleep (1946).
No surveillance work is required to know that Bogart also threw on his Burberry in Casablanca (1942), To Have and Have Not (1944), Dark Passage (1947), Tokyo Joe (1949) and Sirocco (1951). My sources in IMDB’s research department also tell me that Bogart was hell-bent on wearing his trenchcoat in The Caine Mutiny (1954), but those scenes never made it through the final cut.
Thus, it should come as no surprise to anyone that, when Facebook made Timeline mandatory for Pages last month, some marketing whiz realized how cool it would be to populate Burberry’s timeline with photographs of famous celebrities kitted out in historical Burberry garb. Beginning with candid shots of WWI pilots in leather bomber jackets, the timeline gracefully travels from the golden age of the 20s, rolls through the power years of Hollywood’s original icons, and then proceeds to bombard us with modern day marketing — and ruin the whole effect — just as we were thinking how cool Burberry was.
Given Bogart’s iconic role as Burberry model, it is no surprise to see his face on the timeline along with the likes of Tyrone Power, but unfortunately not everyone thought it was quite as cool as I did. Despite the fact that Burberry had a license to use the photograph of Bogart (i.e., licensed from the movie studios), the trustees of Bogart’s estate got it into their heads that Burberry should have sought permission to use Bogart’s image in this fashion, and sued Burberry in Los Angeles state court for trademark infringement and violation of the right of publicity.
“This is such an incredibly disappointing and disrespectful action by Burberry,” said Stephen Bogart, son of the Hollywood legend. “Apparently they believe a shoe company can advertise the fact that Brad Pitt wore its brand while jogging down the street, or a beverage company can claim George Clooney drank its product in one of his movies – all without even asking, much less obtaining, the actors’ permission.”
In response, Burberry filed an action for declaratory relief in New York, where the right of publicity does not survive a person’s death (unlike California). The Complaint asserts that Burberry’s use of the photograph is not intended to spark the sale of its products, and is not advertising, but rather part of the history of the men who have worn Burberry since the company’s inception. As defenses go, this is at least plausible (and may constitute fair use), although the counterargument that Burberry’s use of famous icons is intrinsically self-interested is equally compelling. Given the fact that movie stars are routinely paid by designers to sit in the front row at London’s Fashion Week, it’s a sure bet that Burberry keenly appreciates how Bogart’s continued association with the company enhances its image.
In an odd quirk of fate, after news of the lawsuits hit the press, Burberry’s Facebook page went viral, and the company now has 12 million new fans. In some alternative universe, I can hear Sam Spade and Philip Marlowe laughing to themselves as they turn down the brims of their fedoras and fade into the shadows, their trenchcoats blowing behind them like wisps of night.
Update: Burberry and the Bogart heirs settled their claims confidentially on July 31, 2012.
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.