Well, this sucks. We all know beards are celebrated in brewing and beyond. See, for example, Rogue’s beard yeast brew. And, recently, Charleston-based Holy City Brewery decided to honor one glorious beard by depicting it on their cans. The beard’s owner was Dr. Paul Roof, a six-year professor at a small christian university in South Carolina, Charleston Southern University. Roof was also founder of the Holy City Beard and Moustache Society that holds annual beard and moustache championships, probably how the Charleston-based brewery discovered Roof’s impressive facial hair. All in all, a seemingly pretty rad situation, but things didn’t turn out that way. Evidently, Roof didn’t learn about the brewery’s plans to use his likeness until the beer cans were already in production. When the cans were released, Roof got a lot of support from people who knew him, including former colleagues and students, but the university didn’t like it one bit. As a result, Roof lost his job. (We could say he got canned, but, you know, we resisted.)
Putting aside potential contractual issues between Roof and the university, this unfortunate story presents an opportunity to mention another area of law: right of publicity. Right of publicity laws protect an individual from commercial exploitation of their image or likeness, and they apply to celebrities and you and me alike. These laws are enacted or recognized by common law in individual states, so they’re not necessarily applicable everywhere.
Ultimately, the state of South Carolina’s ROP law has important implications for the brewery, as it might give Roof a cause of action against them. Arguably, though, we can imagine that Roof may have consented to the commercial exploitation of his image when he learned of the in-production cans but didn’t do anything to stop the beers from making it out into the public. We aren’t licensed to handle South Carolina state law issues, but it’s all quite interesting to think about.
Thinking outside these facts, though, if your brewery is planning to depict a real-life person on your cans, you’ll want to be clear about the right of publicity laws protecting that individual. Furthermore, even if you have consent from that person, if you’re working up your can or label art from a picture someone took, you’ll also want to make sure you have permission from the photographer. Even if the person or people in the picture consent, you can still run afoul of federal copyright laws by working off of that picture to form your own artwork. And, violations of copyright law can come with stiff consequences. For these sorts of questions and concerns, it’s best to consult with a lawyer knowledgeable about intellectual property rights.
For Dr. Roof, we hope that the publicity he’s getting from this surprising news story leads to some new good work—beard modeling, who knows? And, that also leads us to one last thing. We expect the brewery involved here had awesome intentions when honoring Roof on their cans. Still, assuming they consulted with a lawyer and assuming the lawyer said they didn’t technically need to seek Roof’s permission due to ROP law in that state, it doesn’t mean they couldn’t still ask before starting production. The inner workings of ROP law, copyright law, and all kinds of law aside, we believe that sometimes the best route for business and everyone involved is to adhere to the Golden Rule, which is often more than the bottom line of the law requires you to do.