Thursday, July 21, 2011

Discovering the "Gaps" - Kardashian v. Gap, Inc.

Yesterday, counsel for Kim Kardashian filed suit in Federal Court in Los Angeles against The Gap and Old Navy for Unfair Competition, violation of California's Common Law Right of Publicity and violation of California's Statutory Right of Publicity.
           The apparent genesis of this lawsuit is an ad first run in February of this year by Old Navy that features an actress/singer named Melissa Moldinado who does look something like Kim and presents a persona within this ad as something of an "it girl" that may -- or may not -- be Kim. The author of this Blog viewed the ad once (which was enough, thank you) and could see the resemblance to Kim. That being said, Melissa's ad character could just as easily been a general reference to almost any other "it girl" with long, dark hair. Or just a trendy ingenue (the groupies, the dancing, the toys dogs and so on).
           Without going into too much chapter-and-verse on the three Causes of Action in the instant Complaint, suffice it to say that while one is Federal, and the other two State, they all surround a common theme; namely, that Gap, et al. structured their ad (and the correlative campaign) to take advantage of Kim's persona (which she has worked very hard to develop and leverage for her own commercial advantage) and profit themselves, not Kim.
           It seems to be no mistake that this case is going forward in the domain of the Ninth Circuit, which tends to favor plaintiffs whose right(s) of publicity have been violated. Methinks (and as a practitioner myself respects) that Kim's attorneys may be relying upon a key triumvirate of cases: White v. Samsung, where Vanna White sued Samsung and ultimately prevailed; Abdul-Jabbar v. General Motors Corp., where Kareem Abdul-Jabbar was able to maintain a right of publicity suit sounding in both Federal and California law; and, Wendt v. Host International, where the Ninth Circuit allowed the factual issues in connection with whether cut-out figures were similar or dissimilar to various Cheers characters to go to a jury for determination.
           These cases, though finally favorable to the plaintiffs, contained some pretty powerful dissenting language authored by Judge Kozinski which continues to resonate in secondary sources and learned analyses. And in Wendt he opined that, "...we [have] held that the right of publicity extends not just to the name, likeness, voice and signature of a famous person, but to anything at all that evokes that person's identity...we again let the right of publicity snuff out creativity." Wendt v. Host International, Inc. (1997, C.A.9) 125 F.3d 806, reh'g denied (1999, C.A.9) 197 F.3d 1284, cert. denied, (2000) 531 U.S. 811. And while a dissent is not the decision in a case, well-taken dissents have a habit of pointing out one or more forks in the legal road that future cases may take.
           Currently, this prompts three issues for Kim's case. One, is it Kim's persona or just a generic "it girl" that is actually evoked by the Old Navy ad that features Melissa? Two, did Gap intend the evocation of Kim by the ad? (I can already feel the discovery issues on the horizon: Kim's camp asking for all correspondence -- including e-mails -- between Gap corporate and the ad agency wherein the folks at Gap and/or Old Navy specifically communicated about a Kim look-alike such as Melissa and maybe even the Gap team requesting a Kim Kardashian celebrity look-alike). Three, is the consuming public likely to be sufficiently confused by Melissa's singing and dancing in the Old Navy ad, thinking that they are seeing Kim and thus believing that Kim has endorsed Old Navy apparel?
           So much for the legal analysis of this case (for now)...more importantly, it appears that Kim's former boyfriend is now dating the purported look-alike in the Old Navy ads, Melissa Moldinado.
           Stay tuned....

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