Noah Klein
Last month, a TikTok user posted video in which she joked about being “ghosted” by a man named Caleb.[1] Despite her video not referring to the now infamous “West Elm Caleb,” her post was quickly inundated with stories from other women in New York City about their terrible experiences with a man named Caleb who works at West Elm.[2][3] These experiences, which tell the story of a serial dater who allegedly “love bombed” women before sending them unsolicited nudes and ultimately ghosting them, quickly led to “West Elm Caleb” going viral.[4] As is common with any major event or trend on TikTok, brands looking to gain some exposure from the buzz quickly jumped-in with their own commentary. For example, Hellmann’s Mayonnaise tweeted “West Elm Caleb thinks mayo is spicy.”[5]
Another, and potentially more problematic, example was from the dating app Keepler: A TikTok that appeared to show a large ad on the side of a building that said, “Red Flags: 6’ 4, mustache, furniture designer.”[6] Although the text does not actually appear on the side of that building and is merely the result of savvy photoshopping by Keepler’s PR team, the text of the ad is clearly a description of Caleb and the TikTok features the hashtag “#westelmcaleb.”[7] Another example was a now-deleted TikTok by Ruggable that disclaimed that “[n]one of these rugs were designed by West Elm Caleb.”[8] Although none of these ads featured Caleb’s full name or picture, there remains the question of whether he has any legal rights against companies that use his likeness in their advertisements.
Right of publicity law is complicated and differs in each state. However, as West Elm Caleb and many of the companies profiting off these women’s experiences are based in New York, let’s focus on that law. In New York, the right of publicity is a statutory right governed by New York Civil Rights Law.[9] This statute prohibits the use of the “name, portrait, or picture” of any living person for “advertising purposes” or “for the purposes of trade” without their prior consent.[10] On first impression, these ads clearly appear to be a violation of this statute. However, there are two main burdens that West Elm Caleb would have to overcome to be sucessful in any claim.
First, West Elm Caleb would have to demonstrate that a protected attribute of his was appropriated. New York courts have construed “name” under the statute literally, such that only use of a “full” is actionable.[11] Use of one’s nickname has consistently failed to be ruled a violation of the statute as a matter of law.[12] However, it is important to note that a limited exception may be found for fictitious names that have “become known to the public and identifies its bearer virtually to the exclusion of his true name.”[13] Considering that nobody has actually revealed West Elm Caleb’s full name, it is conceivable that “West Elm Caleb” would qualify him for that exception.
Second, he would have to demonstrate that his right of privacy overrules any important First Amendment considerations. Keepler’s ad can clearly be found to be within the literal language of the statute (i.e., “for advertising purposes”), as it was listing their service as a way to avoid the terrible experiences suffered by those who encountered West Elm Caleb on other apps. However, New York courts have refused to adopt a literal construction of that term, instead holding that the advertising and trade limitations must have been drafted with the First Amendment in mind.[14] Therefore, according to the standard that the court laid out, West Elm Caleb would have to demonstrate that “the newsworthy or public interest aspect of the [personality] at issue is merely incidental to its commercial purpose.”[15]
Ultimately, these two issues could go either way, and that is assuming both that West Elm Caleb would want to bring a claim and that New York law would in fact apply. However, even the possibility of such a suit should give corporations pause next time they want to appropriate viral stories as part of their advertising campaigns.
[1]meemshou, TikTok (Jan. 11, 2022), https://www.tiktok.com/foryou?is_copy_url=1&is_from_webapp=v1&item_id=7052071776733678895&lang=en#/@meemshou/video/7052071776733678895.
[2]The Editors of GQ, West Elm Caleb is TikTok’s Latest Morally Dubious Detective Story, GQ (Jan. 21, 2022) https://www.gq.com/story/who-is-west-elm-caleb.
[3]meemshou, TikTok (Jan. 17, 2022), https://www.tiktok.com/@meemshou/video/7054295479974251822?is_copy_url=1&is_from_webapp=v1&lang=en.
[4]Casey Fiesler, What TikTok’s ‘West Elm Caleb’ Says About Dating, Social Media—And Us, NBC News (Jan. 26, 2022), https://www.nbcnews.com/think/opinion/what-tiktok-s-west-elm-caleb-says-about-dating-social-ncna1288021.
[5]@Hellmans, Twitter (Jan. 20, 2022 4:11 PM) https://twitter.com/Hellmanns/status/1484272432101965828.
[6]Keeplerapp, TikTok (Jan. 19, 2022), https://www.tiktok.com/@keeplerapp/video/7055108757994507566?referer_url=https%3A%2F%2Fadage.com%2F&referer_video_id=7055108757994507566&refer=embed.
[7]Erika Wheless, Why Brands Should Avoid ‘West Elm Caleb’ and Similar TikTok Trends, AdAge (Jan. 24, 2022), https://adage.com/article/digital-marketing-ad-tech-news/west-elm-caleb-tiktok-trend-why-brands-should-stay-away/2394586.
[8]Id.
[9]Stephano v. News Grp. Publ’ns, 64 N.Y.2d 174, 183 (N.Y. 1984).
[10]N. Y. Civil Rights Law §§50, 51 (1948).
[11]See Lombardo v. Doyle, Dane & Bernbach, 58 AD2d 620, 622 (2d Dept 1977) (finding that the plaintiff did not have a claim cognizable under the statute because his stage name, not his real name, was used); see also Costanza v. Seinfeld, 279 AD2d 255, 255 (1st Dept 2001) (holding that merely using the plaintiff’s last name was not sufficient under the statute).
[12]See Duncan v. Universal Music Group Inc., 2012 U.S. Dist. LEXIS 75998 (ED NY, May 31, 2012) (finding that the use of a nickname is insufficient as a matter of law to establish use of plaintiff’s name).
[13]Maggio v. Charles Scribner's Sons, 205 Misc 818, 822 (NY Magis Ct 1954).
[14]Foster v. Svenson, 128 AD3d 150, 156 (1st Dept 2015).
[15]Id., at 159.