Registered trademark agent and litigation lawyer Sepideh Nassabi’s article "Hailey Bieber, intellectual property: Is it too late now to say sorry?” was published by The Lawyer’s Daily, and discusses a dispute between Justin and Hailey Bieber and a Beverly Hills plastic surgeon who posted a TikTok video comparing then-and-now photos of Hailey Bieber and whether she had plastic surgery. Can the plastic surgeon post the video without Hailey's explicit permission?  or does it violate Hailey's "personality rights"?

The article was published on June 1, 2020. To read the article in The Lawyer’s Daily, visit: https://www.thelawyersdaily.ca/articles/19269/hailey-bieber-intellectual-property-is-it-too-late-now-to-say-sorry-?category=analysis (subscription required).​

Hailey Bieber, intellectual property: Is it too late now to say sorry?

Beverly Hills plastic surgeon Dr. Daniel Barrett posted a video on TikTok suggesting that Hailey Bieber, the wife of Canadian popstar Justin Bieber, has undergone plastic surgery including rhinoplasty, jawline contouring, reshaping her chin, skin-tightening procedures and lip fillers.

In the TikTok video, Barrett shows two photos of Hailey taken years apart and asks his viewers to “Pay special attention to the nose. What do you think? Well, I’ll tell you what I think. I think it’s physically impossible without getting a little bit of help from someone like myself to go from this picture to that picture.”

His TikTok video now has him in legal hot water with both Hailey and Justin. The Biebers had their lawyers send a cease-and-desist letter to Barrett accusing him of using Hailey’s “name, image and likeness” to advertise his plastic surgery practice and accused him of using “copyrighted protected lyrics” from Justin’s song, “Sorry,” in the video caption.

In Canada, recognizable individuals enjoy “personality” rights, such as rights to their name, likeness, voice or other distinctive features which identifies them. Famous people have the exclusive right to exploit their “personality” rights for commercial purposes and if you decide to exploit it without their consent, you are exposing yourself to a lawsuit for the “misappropriation of personality.” With the explosion of social media, the opportunities for misuse of personality have also exploded. Barrett’s TikTok video might be just one recent example.

Some of you might remember a few years ago when William Shatner took to Twitter to express his displeasure that his name and likeness were used to promote a condominium development in Hamilton, Ont. The condo developer used the names and likeness of stars like Shatner as part of the promotion materials for the “Television City” condo.

In fact, the sample floor plans had suites named after celebrities and included caricatures of the stars it was channeling. Shatner’s name and likeness was used to advertise a two-bedroom condo priced at over a million dollars. Shatner took to Twitter and tweeted the following to the developer:

“… it has come to my attention you are using my name & caricature likeness in your brochures to sell real estate. … I do not recall giving you permission to use my name or likeness.”

The developer quickly removed the promotional materials and stated as follows:

“Naming condo units in this industry is commonplace and I have yet to meet a person who purchased a condo merely because it was named one thing or another. … My intention was to honour these stars, but upon receiving William Shatner’s tweet, we have since removed all mention to any person’s name on all Television City collateral.”

Barrett isn’t taking the same approach.

Despite the threat of legal action from the Biebers and other forms of threat from Beliebers — who are die-hard Justin Bieber fans — Barrett is standing by his video and keeping it online. His reason? He says that the purpose of the video is to increase the transparency of plastic surgery and to educate people about it and not to disparage Hailey.

Maybe it is just time that Barrett issues an apology but the video is online and some might say that the damage is already done. Which begs the question, is it too late now to say sorry?

Re-printed with permission from The Lawyer's Daily - originally published on ​June 1, 2020.

If you have any concerns or questions regarding an infringement of your intellectual property rights contact Sepideh Nassabi at snassabi@mindengross.com.