By Tamera H. Bennettposted May 13, 2009
The lawsuit filed by actor/director Woody Allen over the unauthorized use of his image by American Apparel, Inc. on the billboard shown below is heating up in preparation for trial scheduled to start next week. Read the complaint here, answer here, American Apparel's MSJ Memorandum here.
American Apparel President Dov Charney admits the image was taken from the movie Annie Hall and there was no request for permission to use Allen's likeness on the billboard. Charney defends the actions claiming fair use.
The billboards and images from the Annie Hall movie were intended to be a parody/social statement and comedic satire to provoke discussion and public discourse about the baseless claims that had been made against American Apparel and myself, society's reaction to lawsuits that delve into an individual's private sexual life and the media's sensationalism of such matters.
Allen does not see it exactly the same. Allen does not endorse any products in the US and believes this use of his image not only violates his right of publicity, a state law claim, but also creates a false association or endorsement, which is a claim brought under the Federal Lanham/trademark Act.
From a legal wrangling standpoint, discovery has been a mess. American Apparel is attempting to drag in unrelated personal information via the discovery process. There are various motions flying back and forth to compel Allen to answer discovery questions and Allen is responding the requests are over-broad and will not lead to relevant information. American Apparel argues that Allen’s personal information is important in determining the value of his image in calculating damages.
From American Apparel’s standpoint what do they have to lose? I think from a legal standpoint the judge will deny American Apparels pending motion for summary judgment because there are factual issues regarding whether or not this use was a fair use. But, that said, if American Apparel settles or goes to trial, it may still be a cost effective marketing campaign. History seems to reflect that controversial press is the goal of this company.
UPDATED 5/18/09: Case settled paying Allen a reported $5 Million. Read more here.