Woody Allen continues his success stopping commercials from using his image for sale of goods
Evidently ignoring New York state law, American Apparel had threatened to disparage Mr. Allen's reputation and thereby reduce the value that would be associated with the company's misuse of his likeness. The image used without permission came from Annie Hall, featuring Mr. Allen dressed as a Hasidic or Haradim Jew. According to the Times, statements by the two men showed the bitter personal nature of the dispute:
“Threats and press leaks by American Apparel designed to smear me did not work and a scheme to call a long list of witnesses who had absolutely nothing to do with the case was also disallowed by the court,” commented Mr. Allen. “I suspect this dose of legal reality led to their 11th-hour settlement.”
Mr. Charney, was unrepentant, explaining that "his insurance company had forced him to settle."
“I’m not sorry for expressing myself,” he said. “I wish him the best with his career, and I am looking forward to his next film.”The arguments by Mr. Charney ignores both federal and state law, which generally prohibits the false and misleading inference of endorsement and the use of a person's identity for the commercial sale of products.
New York's privacy statute is the oldest statute of its kind in the U.S.:
§ 50. Right of privacy. A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.
§ 51. Action for injunction and for damages. Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's name, portrait, picture or voice in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages.
Of course, even commercial content is protected by Free Speech. A true parody advertisement would be protected speech, even if it were used in connection with the sale of goods or services, but it is rare for a a product campaign to be true parody.
Particularly given Mr. Allen's history stopping such parody ads by other companies, the choice by American Apparel was odd and the decision to settle made sense - for the insurance company if no one else.
The contours of publicity rights are among the least defined in U.S. intellectual property law, but using a celebrity on a billboard to hock clothes is not. It comes with a $5 million price tag.
