(Update: According to an article in the New York Times, the Allen vs. American Apparel lawsuit settled on the court room steps this morning for $5 Million.)
The trial for Woody Allen’s lawsuit against American Apparel is scheduled to start today, May 18, 2009, in New York.
Why is Woody Allen Upset?
American Apparel used still images of Woody Allen from the film Annie Hall on billboards located in New York City and Los Angeles and in internet advertisements. In the image, Allen is in full Hasidic Jewish attire and has a full mustache and beard. The billboard includes a Yiddish phrase translated to mean “The Holy Rebbe” and the words “American Apparel”.
American Apparel did not seek Allen’s permission prior to posting the billboards. As a result, Allen filed a lawsuit against American Apparel in the Southern District of New York federal court.
Allen’s lawsuit includes a claim under Sections 50 and 51 of the Civil Rights Law of the State of New York which allows you to sue someone who uses your name, portrait, picture or voice in New York for advertising purposes without your permission. The lawsuit also includes a claim under Section 43(a) of the Lanham Act which allows you to sue if someone falsely implies you endorse a product or service.
Is the Billboard a Commercial Use of Allen’s Persona
The outcome of the court battle will focus on whether American Apparel’s true intent behind the billboard was to advertise its goods or to parody Mr. Allen.
American Apparel CEO Dov Charney argues that the billboard did not have a commercial purpose and is a parody. At trial, he plans to explain how the use of the image from the Annie Hall film makes a social statement and addresses social issues. If the court accepts that argument, the American Apparel billboard could be deemed a permissible parody protected by the First Amendment – regardless of the lack of consent from Allen.
In its documents filed by the court, American Apparel says “It strains the imagination to identify what ‘commercial transaction’ is proposed . . . The images do not feature or refer to any of American Apparel’s products, and so do not offer anything for sale.”
Personally, I do not have to strain my imagination too much to see how a consumer could interpret the billboard as an advertisement. American Apparel is known for its avant-garde advertising style. I have certainly seen progressive commercial advertisements that do not prominently feature or mention the product or service they are advertising.
Not a Smart Move by American Apparel
Even if American Apparel meant for the billboard to be a non-commercial parody, plastering Woody Allen’s face on a billboard just isn’t a smart move for someone who doesn’t want to wile away many hours at the center of a litigation proceeding.
One of the top questions to ask yourself when evaluating the risk of using someone’s material or persona without permission is whether the person has previously objected to similar uses of his material. It is a good bet that someone who has been aggressive in protecting his rights in the past will continue to be aggressive in protecting his rights in the future.
Without even doing any research, I am aware of two lawsuits filed by Woody Allen relating to the unauthorized use of his images in a commercial context. There are probably more Allen lawsuits out there.
American Apparel is not a fledgling operation struggling to finance its “creativity” with personal loans and credit card debt. It is a publicly traded company with a cadre of experienced attorneys at its disposal. One conversation with his legal team should have told American Apparel CEO Dov Charney that Allen would not be a happy camper when he saw the billboards and that a lawsuit might be a consequence of the billboard campaign.
Similarities to the Naked Cowboy Case
The Allen case reminds me of the Naked Cowboy case about which I also blogged. Robert Burck, better known as the Naked Cowboy, is a street performer who sings while accompanying himself on a white guitar. He wears a white cowboy hat, white cowboy boots, white briefs, and nothing else.
Burck sued Mars, the company that manufactures M&M candy after it posted a Times Square billboard featuring an animated blue M&M playing a white guitar and wearing an outfit similar to Burck’s.
Like Allen’s current case, Burck’s case was also before the Southern District of New York federal court. And like Allen’s current case, Burck’s claims included a Section 50/51 right of publicity claim and a Lanham Act false endorsement claim.
Burck lost his right of publicity claim because Mars did not use an actual photograph or likeness of Burck. Instead, they dressed up an M&M like him. There’s no Section 50/51 protection for evoking aspects of a fictional character you play.
The court allowed Burck’s Lanham Act Section 43(a) false endorsement claim to continue. As part of that claim, Burck alleged that consumers seeing the advertisement might incorrectly conclude that Burck had endorsed M&M candy. According to the court, Burck’s allegation was plausible and merited a hearing at a trial.
Ultimately, Burck and Mars settled the lawsuit without a trial. The parties did not publicly disclose the terms of the settlement.