American Apparel over the use of his image in ads for the company. The company ran a picture of Allen from the movie Annie Hall where he is dressed as a Hasidic Jew. They are now claiming that he is entitled to little of the $10 million that he sought in the lawsuit because he already destroyed the value of his reputation. Instead, it is suggesting that he is trying to get an Annie “Hull” by overstating the value of the image from the movie. It appears that the company does not agree with Allen that “Eighty percent of success is showing up.”
The common law has long protected the right to publicity or the Appropriation of Name or Likeness. It is amazing that the company would use the picture of the 73-year-old actor in the first place. It appears to have been an act that they regretted since they claim to have removed the ads within a week. The company apologized for the use of the image. Does this company have any lawyers or does it just proceed in the blind until it receives intent-to-sue letters?
The clothing company now plans to argue that Allen’s relationship with Mia Farrow’s adopted daughter Soon-Yi Previn an issue at trial. The company’s lawyer, Stuart Slotnick said “Woody Allen expects $10 million for use of his image on billboards that were up and down in less than one week. I think Woody Allen overestimates the value of his image.”
The issue is relevant is determining the value of the endorsement — which of course the company never bothered to get from Allen. Allen is fighting a demand to turn over documents in discovery that would show his endorsement requests after his scandal with Soon-Yi.
The courts have been highly supported of celebrities in seeking compensation for the use of such images, including the case of Vanna White who successfully sued Samsung for using a robotic in a blond wig turning cards. In a decision that I find perfectly incomprehensible, the Ninth Circuit ruled that a blond person turning cards was White’s sole schick and that the company stole her likeness. I agree with Judge Kozinski’s dissent in thatWhite v. Samsung, which can be accessed here.
This case is clearly stronger and the fight will be over the value of the endorsement in ads that only ran for a week.
On one level, the discovery would appear relevant given the need to appraise the value of the endorsement. On another level, it comes close to the “libel-proof” plaintiffs theory in defamation where the party argues that they could not have harmed the reputation of the defendant because the defendant had no good reputation. This is confined for the most notorious defendants. Here, the argument is that Allen destroyed the value of his endorsement through the scandal and thus would be entitled to modest compensation.
I suppose he could use a defense from Annie Hall when he said “I would never want to belong to a club that would have me as a member.” In the same way, he would never buy clothes form a company who would have him as a model.
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