The celebrity (although I’m not sure why) Kim Kardashian is suing Old Navy and its parent company Gap, Inc. in Los Angeles federal court for using a lookalike model in their advertisements. Specifically, Kardashian claims that this video violates her rights of publicity by featuring a model who very closely resembles Kardashian.
The video itself has generated more than 2 million views on YouTube to date. Kardashian’s suit alleges that the reality TV star “has invested substantial time, energy, finances and entrepreneurial effort in developing her considerable professional and commercial achievements and success, as well as in developing her popularity, fame, and prominence in the public eye.” Does Kardashian have a case?
Similar Cases, Similar Questions
It’s rare that a case involving a celebrity’s rights of publicity versus a celebrity impersonator actually goes to court; the vast majority of these cases settle before a court can weigh in, so there are not a lot of guidelines here. In one somewhat similar California case, White v. Samsung, Vanna White sued Samsung for using a robot with blonde hair and white pearls in front of a game board similar to Wheel of Fortune. While the robot was apparently intended to be a parody of both the show and White’s persona, the California court ruled for White and ordered Samsung to pay her damages.
In a related case, musician Tom Waits sued Frito-Lay after the company used a Waits soundalike to sing a song very similar to his hit “Step Right Up.” Frito-Lay had previously contacted Waits asking him if they could use his song in the advertisement. Waits refused to oblige, which prompted Frito-Lay to use an impersonator. The 9th Circuit Court of Appeals (a Federal court whose jurisdiction includes California) affirmed an award of $2.375 million for Waits, which in 1992 made him one of the first artists to successfully win a lawsuit against a company for using an impersonator without permission. Of course, that was a soundalike, which may or may not be similar to a lookalike depending on the judge and jury in question.
While there is, in theory, a right to parody elements of a celebrity’s persona, in this case it appears that Old Navy – much like Samsung and Frito-Lays – is using Kardashian’s lookalike primarily to sell jeans and not to provide a social commentary or satire. Therefore, it seems unlikely that they will be able to successfully claim fair use on the basis that the commercial is a parody and therefore protected under the First Amendment. Kardashian’s legal team estimates that she has been harmed by this advertisement to the tune of $15 to 20 million, although many expect that she will ask for even more money in damages. Kardashian did not name the Old Navy model, Melissa Molinaro, as a defendant to the suit – presumably her Old Navy jeans do not have sufficiently deep pockets.
Applying the Waits and White cases to the facts in Kardashian makes it seem as though she should have a strong claim against Old Navy. At the same time, at what point do we draw the line? Shouldn’t Old Navy have the right to use whatever model they choose to advertise for their jeans, even if the model looks like a celebrity? Shouldn’t Molinaro have some rights of publicity in her own image? Should she be barred from pursuing a modeling career simply because of her resemblance to Kardashian? Perhaps the fact that Old Navy has publicly admitted that Molinaro looks like Kim Kardashian will be their downfall, as the company seemed to want to draw more attention to the advertisement by highlighting the fact that Molinaro and Kardashian do bear a striking resemblance.
The Legal Nitty-Gritty
While Kardashian may have common-law rights (rights that evolve out of court decisions, not out of a law passed by the legislature), California also has a statute that grants a good deal of protection for celebrities and the valuable elements of their personae. See California Civil Code Section 3344: Use of Another’s Name, Voice, Signature, Photograph, or Likeness in Advertising or Soliciting Without Prior Consent: (a) Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.
The wording in red is relevant to this inquiry, and it all turns on whether the use of a lookalike model would fall under the statute’s definition of a “likeness.” I’m far from an expert in the Kardashian phenomenon, but it does seem clear that Old Navy was attempting to trade off the Kardashian image in casting Molinaro. If, in fact, Kardashian can prove that type of use is a “likeness” under Section 3344, the rest of the highlighted words may turn into red ink for Old Navy.