Last year, writer/director/actor Woody Allen launched a $10 million suit against clothing maker and retailer American Apparel over their unauthorized use of his image on a billboard advertisement. The trial is set to go before a jury on May 18th. However, on April 15th it was reported that Allen brought an additional complaint to the court claiming that American Apparel’s lawyers had gone too far in their discovery requests, in particular by seeking information regarding Allen’s past sex scandals.
Lawyers for the clothing maker are expected to take a no holds barred approach and argue that Woody Allen’s past actions have damaged his reputation in North America such that the commercial value of his image is worth less than Allen claims. This is expected to include bringing up details of his well known affair with and subsequent marriage to his ex-wife’s adopted daughter Soon-Yi Previn.
Allen’s side claims this is an attempt to further embarrass and intimidate him. They maintain that Allen does not endorse products in the United States and that the advertisement gives the false impression that he endorses American Apparel. He further points to the clothing company’s reputation for provocative ads, which the company proudly acknowledges via a link on their site to view their “Recent and Provocative Ads”, as providing further reason why he would not want to be associated with the company.
The billboards featured a still shot from Allen’s film Annie Hall of him dressed as a Hasidic Jew with the phrase “the Holy Rebbe” written in Yiddish above Allen’s image and the words “American Apparel” written in English beside his image (photos of the billboards can be seen here and here).
The original March 31, 2008 claim seeks damages under s.50 and s.51 of the New York State Consolidated Laws for breach of Allen’s right to privacy. These sections prevent the unauthorized use of a person’s image for commercial purposes. Damages are also sought under s. 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) for misrepresenting Allen’s sponsorship of American Apparel on the billboards.
These facts highlight a difference between two of the philosophical underpinnings of this type of action, the privacy basis and the brand protection, or trademark, basis. Here, the underlying privacy basis is weak as the image used is not only of a celebrity but it is a screen capture of him in one of his films. That is, there is nothing being protected that has not already been made publicly and commercially available by the person in question. On the other hand, the basis for an action rooted in trademark principles is strong because of Allen’s celebrity and the control he seeks to maintain over his personal brand.
Despite any potential ruinous harm Allen has done to his reputation, it seems beyond doubt that his image is indeed worth something. As such, it seems that the case will be more about the quantification of this value than about interpreting these laws. While a person’s overall reputation would be an important factor in determining their image’s commercial value, perhaps more important is how successfully it reflects or promotes the company their image is being used to endorse. If that’s the case, maybe trumpeting Allen’s provocative public history isn’t the best way to show the low value of his image as used in one of American Apparel’s provocative ads?