Thursday, May 14, 2009

At least he didn't violate the DMCA

Allen v. American Apparel involves a billboard, marked “American Apparel” and featuring a still of Woody Allen dressed as an Orthodox rabbi. Defendant’s summary judgment brief, via Marty Schwimmer, is a bold attempt to have Allen’s false endorsement suit dismissed on First Amendment grounds. Apparently, while watching Annie Hall, Dov Charney was struck by the similarities between his story and Allen’s. “In a moment of artistic inspiration, Mr. Charney … began the process of taking digital photographs of certain scenes from the movie. Using the controls on his television recording system, he searched for and paused the Annie Hall movie on precisely the scene that had inspired him—the scene in which the Alvy Singer character at that table tilts his glasses upward. He then manipulated the digital photographs using a computer program, adjusting the color, the clarity and other artistic aspects of the photographs, all in furtherance of his artistic vision.”

Bonus question: if California law applied, would the inverse of the White v. Samsung rule be that if nobody recognizes Allen, no violation of the right of publicity occurs?

4 comments:

Dave said...

I think you raise an interesting question. Are you appropriating someone's "likeness" when the image of that person does not in fact "resemble" the "likeness" that has acquired "celebrity status"? In White, the appropriation was of Vanna White's persona as depicted in Wheel of Fortune--something for which she was known and for which had acquired notoriety. Where the individual is not recognizable "as a celebrity" (i.e., the depiction does not play off of the person's notoriety), I don't think we want the law to recognize this type of claim.

There is also a question of using the Allen's "identity"--similar arguments may raise similar concerns.

Of course, I haven't read any right of publicity cases since law school, so what do I know.

Heather said...

Okay -- not a law student, but wouldn't the real issue be that he is using stills of a copyrighted movie without permission? I mean, I couldn't just use some obscure disney character or any character to advertise without the company's permission, so how is this different just because most wouldn't recognize it as Woody Allen? Am I missing something here?

Rebecca Tushnet said...

Heather--there's no copyright claim in this case; I don't actually know who owns the copyright, but it would be a very different case from the right of publicity claim. The right of publicity can often be much broader than copyright, at least in the case of an ad.

Heather said...

Ahh -- Understood. I guess I would have to agree with Allen - as long as there are some who would recognize him in such a role, it is his "likeness" and thus he would own it. Regardless of whether the person is a "celebrity" per say, I would think they needed the person's permission to post it everywhere and make money off it.