Kim Kardashian Sues TV Commercial for Violating Her Right of Publicity1 Aug, 2011 By: Gregory J. Sater
Reality TV celebrity Kim Kardashian has filed suit against Old Navy over a TV commercial she says violates her right of publicity because it features a woman whom she alleges to be a look-alike. Kardashian alleges that consumers who see that woman in the commercial will mistakenly conclude that it is her and, therefore, that she is endorsing the clothes sold by Old Navy.
In the commercial (visible at www.youtube.com/watch?v=FqIP6xVB6U8), a young woman with long brown hair dances and sings. Arguably, the woman does look somewhat like Kardashian. In addition, in one scene, “paparazzi” are seen taking pictures of her, which also might call to mind a celebrity like Kardashian.
To prevail on her claim in California, where she resides, Kardashian will need to prove that consumers are likely to think that the woman in the commercial is her. The key precedent is found in White v. Samsung Electronics. In that 1992 case, Vanna White filed suit over a print ad that depicted a robot dressed in a blonde wig, gown and jewelry and standing next to a large wall-mounted board game with letters.
Two key rulings came from the court in this case. First, it ruled that the robot did not appropriate White’s “likeness” because it did not look exactly like her. It was not “a manikin molded to White’s precise features,” but rather looked like a metallic machine. However, as a second holding, the court held that California’s common law right of publicity is broad enough to allow a claim for appropriation of one’s “identity” including through impersonation, and that this is true even in the absence of the use of one’s name or likeness. Further, the court wrote: “Advertisers use celebrities to promote their products … The law protects the celebrity’s sole right to exploit this value whether the celebrity has achieved her fame out of rare ability, dumb luck, or a combination thereof.”
While the dissent in White would have ruled that White’s “identity” had not been misappropriated because “no reasonable juror could confuse a metal robot with Vanna White,” the majority viewed that as being an issue of fact for a jury to decide.
The same question is now raised by Kardashian’s case: do consumers draw the conclusion that the brunette seen in the Old Navy commercial is her? As it happens, the brunette in the commercial is named Melissa Molinaro and she is reportedly dating NFL football player Reggie Bush – who previously dated Kardashian. One must assume that Bush, at least, understands that the woman he’s dating is Molinaro, not Kardashian. But do consumers understand that they’re different?
Here are some blog posts about the case that show how jurors might react, if the case goes to trial:
• “You can’t sue someone for having dark hair and tan skin.”
• “So that means Molinaro can never work again because she looks like Kim?”
• “When I first saw the commercial I thought it was Kim.”
• “She looks more like Eva Longoria than Kim.”
• “Kim is just jealous about Molinaro dating her ex-boyfriend”
• “My dog should sue, because he looks exactly like the one she’s walking in the commercial.”
Whatever happens with the case, it is a good reminder to always consider the right of publicity when producing a TV commercial or any other ad copy.