Because I practice bankruptcy law everyday, it is sometimes nice to take a momentary diversion from Chapter 7, Chapter 13, debt, creditors, consumers, etc… This blog is going to veer away from bankruptcy, but, fear not, it will still be law related.
By now, I am sure that many of you have heard that the reality show star and celebrity, Kim Kardashian, is suing Gap Corporation for the use of a Kim K. lookalike in it’s “Super Cute” Old Navy commercial. When I first heard this, I thought the claim was pretty far fetched and just another way for the “celebrity” to get her name in the spotlight. Upon further reading of some very interesting cases, I have changed my stance a little.
I cannot find a public copy of Miss K’s initial complaint against Gap, but based on the newspaper articles and cases I have read, I can imagine that her claims will fall under the common law right of publicity and Section 43(a) of The Lanham Act, 15 U.S.C. Sec. 1125(a). The right of publicity basically states that a individual (most likely a celebrity or someone in the public eye) has a property right in his/her likeness and should have the sole right to exploit that interest. No other entity should be allowed to appropriate the celebrity’s likeness for purposes of pecuniary or commercial gain without the celebrity’s consent. Section 43(a) of The Lanham Act addresses, more specifically, false advertising. A Lanham Act claim will allege that a celebrity’s likeness has been used in a manner that would confuse the public, perhaps confusing the public into believing the celebrity endorses that product. Initially, Section 43(a) claims dealt mostly with the use of trademarks, but case law has adapted this so that a celebrity’s “mark” is viewed as his/her identity.
I found two cases relevant to Miss Kardashian’s case that I would advise her to look at if I were her attorney (and wouldn’t that be great if I was?). The first is White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992). Essentially, Vanna White sued Samsung for using a robot in it’s commercial that was stylized to look like Vanna White and was placed on a set that resembled Wheel of Fortune. White initially lost on summary judgment, but the United States Court of Appeals for the Ninth Circuit reversed the lower court on both Ms. White’s right of publicity and Lanham Act claims. The most significant aspect of this case for Kardashian is the Court’s determination that the appropriation does not have to be just of the celebrity’s likeness, image, or signature. It can also be of their overall identity. Here, although Samsung used a robot and not a picture of White, the Court found that sum of all the elements in the commercial pointed to the identity of White and left no doubt as to who the figure was supposed to represent. Impersonation was enough for the Ninth Circuit to determine that a jury should hear this case.
The second case is Rosa Parks v. LaFace Records, et al, 2003 FED App. 0137P (6th Cir. 2003). The Sixth Circuit in this case examined the lawsuit of Rosa Parks against the music group, OutKast, over their song titled Rosa Parks. The Sixth Circuit focused mainly on the Lanham Act claim, and OutKast’s proposed defense that their use of Ms. Parks’ identity was protected by their First Amendment right to freedom of speech. The Court looked at whether there was any artistic relevance between the title of the song and the underlying work. If there was any artistic relevance, the Court would then determine if there was an explicit misrepresentation between the title of the song and the content of the work. The Sixth Circuit could not find any artistic relevance between the persona of Rosa Parks and the words of the OutKast song. Thus, the group did not have a defense to Ms. Parks’ claims. What is significant in this case for Ms. Kardashian is that purely commercial speech, such as the Old Navy ad, is granted even lower consideration in the free speech spectrum.
Will Kim win her lawsuit? The typical lawyer answer is, “it depends.” I think she has a chance based on both of the cases I have read. Although, Old Navy isn’t using a clip of the actual Kim without her permission, her assertion is that they are using an impersonator, or are appropriating her identity. I think it’s a claim that would withstand summary judgment and could go to trial. However, I don’t know if a jury would necessarily find that the connection between the “fake Kim” and the “real Kim” is so strong that Old Navy is either infringing on her property right in her own identity or confusing the public that Kim Kardashian endorses the Old Navy brand. But, for someone who has capitalized on being famous for just her image, it is an important battle to wage. Which brings me to perhaps my favorite statement by a judge, “the law protects the celebrity’s sole right to exploit this value (celebrity value) whether the celebrity has achieved her fame out of rare ability, dumb luck, or a combination thereof.” White, 971 F.2d 1395 at 1399.
Check out the commercial on YouTube to make your determination.