Lionsgate, the producer of the television show "Mad
Men," recently settled a right of publicity lawsuit brought by
79-year-old former model Gita May Hall for using her image without
her consent in the opening credits of the show. The opening credits
feature an animation of a businessman falling slowly from a
skyscraper. As the man falls, images of 1950s era advertisements
featuring models are seen superimposed onto surrounding
skyscrapers. The advertising images continuously morph as the man
falls and the viewer's perspective changes. One of those
images, a decades-old Revlon ad for "Satin Spray"
hairspray, featured a much younger May Hall and formed the basis of
her lawsuit.
According to her attorneys, May Hall was a "famous celebrity
from the 1950s [and her likeness was used only] to promote and
burnish the image of the show in the eyes of the public and to
create 'the feel' of the program that was critical to its
commercial success." While we tend to doubt that May
Hall's image was particularly critical to Mad Men's
success, many sound reasons exist for why Lionsgate may have opted
to settle rather than litigate. Perhaps most persuasively, it seems
like a reasonable choice to not litigate with a 79-year-old woman
who (rightly or wrongly) feels like she has been harmed. Whatever
its reasons, though, had Lionsgate opted to defend this suit, May
Hall's likelihood of success was not high, as a number of
defenses were present.
First, under California law, right of publicity claims are subject
to a two-year statute of limitations from the date of first
publication. Mad Men, and its opening credits, first premiered on
July 19, 2007. Thus, barring some unusual circumstances, May
Hall's claim likely would have needed to have been commenced by
July 19, 2009. Second, California's interpretation of the First
Amendment as applied to the right of publicity allows for the
"transformative" use of a celebrity's likeness
without permission or compensation. Lionsgate would likely have
argued (persuasively in our view) that Mad Men's use of May
Hall's image was transformative.
The right of publicity exists to protect a well-known
individual's economic interests in controlling how their image
is commercially exploited. Thus, an exact, literal depiction of a
celebrity's likeness used commercially will not likely be
considered a transformative use, and would probably result in
liability under a right of publicity claim. Conversely, "when
a work contains significant transformative elements, it is not only
especially worthy of First Amendment protection, but it is also
less likely to interfere with the economic interest protected by
the right of publicity." Comedy III Productions v. Gary
Saderup, Inc., 21 P.3d 797 (Cal. Sup. Ct. 2001).
Here, it is highly unlikely that Mad Men's use of May
Hall's image in the opening credits as one of many images that
continuously morph as a business man plummets to his demise, could
properly be characterized as anything other than transformative. At
the very least, a fact finder would not likely determine that the
use of May Hall's image was merely a literal depiction or
imitation utilized solely for commercial gain. Accordingly,
although many reasons for settling a dispute exist beyond the
merits of a particular claim, we would suggest that it is likely
that the defendant would have prevailed.
Finally, unlike other forms of intellectual property such as
copyright and trademark rights, which are governed by federal law,
laws protecting the right of publicity vary among the fifty states.
While there is some sense of uniformity, there is also quite a bit
of nuance between jurisdictions. Thus, anyone considering bringing,
or finding themselves forced to defend, a right of publicity action
should consider counsel familiar with that state's controlling
authorities on the issues. With offices in multiple jurisdictions
including California, New York, Washington DC, Georiga, Colorado,
Washington, and North Carolina, Kilpatrick Townsend is equipped to
handle right of publicity claims in every U.S. jurisdiction.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
