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SBJ/January 7-13, 2013/Marketing and Sponsorship
Genome Project suit tossed
Published January 7, 2013, Page 8
The athletes plan to appeal the decision.
The Genome Project was a Facebook application, which Samsung and the USOC developed with the marketing agency Team Epic, that allowed users to see how they were connected to past and present Olympians. It evaluated such biographical elements as where people are from and where they went to school and used that information to compute how they were connected to Olympians. For example, users who attended Brandeis University would see that fencer Tim Morehouse also attended the college and, ideally, become interested in following Morehouse during the London Games.
After the site went live, a group of Olympians that included Dara Torres, Mark Spitz, Greg Louganis, Jackie Joyner-Kersee, Aaron Peirsol, Cullen Jones and Jessica Hardy sued Samsung for using their image and information commercially without their permission. Some athletes had endorsements with Samsung competitors; Torres, for example, had a deal with Hewlett-Packard.
Samsung and Team Epic, which was a party to the lawsuit, filed a motion after the lawsuit was filed to have it dismissed because the Genome Project was protected by the First Amendment and the plaintiffs didn’t have legal standing to sue. The motion forced Rich Foster, the attorney representing the Olympians, to prove that the Genome Project was commercial speech not protected by the First Amendment.
Los Angeles Superior Court Judge Ruth Kwan found that Foster couldn’t do that. She sided with Samsung and Team Epic and threw out the case, saying, “The fact that Samsung may have acted with economic motivation in creating the Genome Project does not, in and of itself, turn the Facebook application and content into commercial speech.”
Foster challenged the judge, asking why a company would ever pay athletes for future endorsements if they can use their “names and images on a Facebook application for free” and “claim the athletes’ stories are public interest,” but she stood by her ruling. He plans to file an appeal after the court signs its order in the coming weeks.
“This is an important issue nationwide, not just for celebrity athletes but celebrities in general,” Foster said last week. “We have to let the California court system know this is serious.”