The same day news of the suit against Hershey hit came reports that NBA basketball star Charles Barkley was suing Nikon and its agency, Fallon McElligott, over a photograph of Mr. Barkley used in a spread ad-an ad later celebrated as a finalist in the magazine industry's Kelly Awards creative competition. Possibly this too is a case that can be cleared up easily since it's beyond comprehension how a major advertising agency like Fallon McElligott could have proceeded with such an ad without proper clearances. (The ad did credit the Hoops photo file, and that's an NBA publication.)
We're equally amazed by the statement from Kmart Corp. that the singing voice in its new advertising, reviewed by our own Bob Garfield, is "sort of a soundalike" to pop singer Sheryl Crow-this coming so soon after the end of the much publicized Bette Midler vs. Young & Rubicam case.
Recording artists, basketball stars and other luminaries have rights that advertisers must respect to the utmost, as outlined in the court decision in which Ms. Midler was awarded damages because Y&R used a soundalike singer in a Lincoln/Mercury commercial. It's irresponsible for agencies or others to define too loosely what's in the public domain since the U.S. Supreme Court let stand the lower court rulings that made "soundalike" a bad word in adland.
These news reports make for a refrain worth repeating.