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Volume 21 No. 1
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Olympians settle with Samsung over Genome Project

The 18 Olympians who sued Samsung last year have decided not to appeal a judge’s ruling that the electronics company didn’t misappropriate the names and images of the athletes for a London Games marketing program.

The decision brings an end to the lawsuit, which was considered to be a test of a company’s right to use athlete or celebrity imagery in digital marketing efforts. Rich Foster, the attorney who represented the Olympians, said they arrived at a settlement with Samsung two weeks ago. He declined to define the terms of the settlement. In cases like this, plaintiffs often drop their right to appeal in exchange for not having to cover legal expenses of the defendant.

An appeal held risks for both parties. If a trial court upheld the judge’s decision against the Olympians, it would set a precedent that companies could use celebrity and athlete images without their permission in some cases. If a trial court reversed the judge’s decision, it would allow every Olympian featured in Samsung’s Genome Project, a Facebook application developed with the U.S. Olympic Committee and marketing agency Team Epic, to seek damages from Samsung.

Team Epic Principal Mike Reisman said the plaintiffs’ decision to drop their appeal and the judge’s decision showed that the lawsuit was “frivolous.”

“The California court shut it down, saying it had little to no chance of gaining traction,” Reisman said. “It vindicates the legal teams at Samsung, the [U.S. Olympic Committee] and [Team] Epic that saw this as a trailblazing marketing program that met all intellectual property rights and litmus tests.”

Foster disagreed, saying, “We would have liked to have appealed. The judge was dead wrong.”

The lawsuit was filed last spring after Samsung unveiled the Genome Project. The application 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 matched that information with Olympians who had similar connections. For example, users who attended Brandeis University would see that fencer Tim Morehouse also attended the college and, ideally, become interested in following him 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.

Olympic agent Evan Morgenstein represented a majority of the athletes in the lawsuit when it was filed. A month after the London Games, Ralph Santana, Samsung America’s chief marketing officer, left the company. The marketing initiative was the first that Samsung had run around the Olympics in the U.S., and Santana had overseen its development and championed it in the press.

Samsung and Team Epic, which was a party to the lawsuit, claimed that the Genome Project was protected by the First Amendment and filed a motion to have the lawsuit dismissed. A Los Angeles Superior Court judge sided with them late last year and dismissed the case, saying the Facebook application wasn’t commercial speech.

Foster said the athletes would appeal the judge’s decision but later agreed with Samsung to drop its appeal.