Woody Allen Takes the Money Without Breaking a Sweat

(Introducing the concept of commercial misappropriation of name and likeness in advertising.)

The use of human model photography in commercial advertising dates back to the beginning of the twentieth century, but it has a special resonance in our own time. Since the advent of multimedia and the graphical Internet, companies large and small have been hungry to feed the beast, i.e., the voracious public appetite for photos and videos. In the context of advertising, they would like to use your image or mine -- for that matter, anyone who steps outside the private sanctuary of his home into a camera's range -- to represent whatever mood, idea, product, etc., that they wish him (or her) to represent, and they would like nothing more than to do this without having to pay for the privilege. It's a hybrid issue of human rights and dignity, unjust enrichment, property in one's own visage (or other uniquely identifiable characteristics), and one's right to be free of intrusion and exploitation. In cases of advertising a particular product, it may also be an unfair competition issue. Commonly, but not invariably, it pits an individual against a corporate concern that has attempted to capitalize on his renown for its own profit, although the victim need not be famous. While plain, ordinary people are not immune from being "ripped off" this way, we usually hear about such thefts only when they happen to celebrities. Plain, ordinary people, however, are just as vulnerable to this type of exploitation of their personas, perhaps even more so, since they lack the financial clout to fight back. In short, anyone can be recruited against his will as a model for someone else's product.

It is not my intention to explore the variety of philosophical underpinnings for the rights of privacy and publicity. For purposes of this blog, it is sufficient that New York has seen fit to recognize these rights within limitations, and I believe that this statute, the bane of a well-organized First Amendment bar that caters to wealthy corporate interests (they are not yesteryear's legendary champions of civil liberties but money whores), serves a salutary purpose. In my view, there is something pernicious about the recent trend in discussions of mass culture that see all of us (not only celebrities) as part of a pool of cultural resources available to be tapped as symbolic assets, purportedly in the service of some ideal of free expression and artistic (or political) enlightenment, but more realistically for someone else's crass profit. Take as an example this ad for a drug and alcohol treatment center that appeared in the New York Post in late September 2007, a blatant attempt to reap gain from news reports about actress Lindsay Lohan. Whatever your opinion of her, what did she do to invite this kind of exploitation and humiliation, this cruelty and finger-wagging at the expense of someone who sought nothing of the ad's sponsor, did not consent to it, and offered no endorsement of their services? Robert Groden's photograph was nowhere to be found in Gerald Posner's book, Case Closed, so what did he do to warrant Random House plastering his face on ads for the book, accusing him of misleading the American public and branding him with someone else's conspiracy theory? He contributed material to a book edited by someone who, for some reason still unexplained, managed to escape such calumny. Regardless, Groden's renown in his narrow specialty served Random's need for a prominent symbol of its publisher's bile. There would have been no Lindsay Lohan ad without Groden, and it is precisely where the implications of the Groden case have taken us. It is one of the reasons why I will show that it was more than a departure from previous legal precedent. Carefully examined, the court decisions in Groden's case have a disturbingly cynical and contemptuous character about them, as though the judges, lacking more effective tools to assist them, knew that they were twisting the meanings of the cases they purported to cite as their precedential authority, yet were so results-oriented -- so obsessed with defeasing this particular individual of his rights -- that they didn't care. As a consequence, and as the Lohan example shows, should the Groden case stand as valid legal precedent, the rights of others against what amounts to piracy have been compromised.

The gravamen of the New York Civil Rights Law §§ 50-51 is the misappropriation of a person's name or likeness "for advertising purposes" or "for purposes of trade," without consent.

New York’s Civil Rights Law, § 50 reads as follows:

§ 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.

New York’s Civil Rights Law § 51 reads in pertinent part:

§ 51. Action for injunction and for damages

Any person whose name, portrait or picture 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 or picture, 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 or picture 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. . . .

"I am told the settlement [that] I am being paid is the largest reported amount ever paid under the New York 'right to privacy' law," Woody Allen told reporters in May 2009, as he claimed victory over the American Apparel company for this advertisement, in which they used his image without his permission.

Allen sued American Apparel in the United States District Court for the Southern District of New York after the company erected billboard ads, and published a similar ad on its Internet web site, using images of Allen from his 1977 Oscar-winning film, "Annie Hall", dressed in character as a Hasidic Jew with a long beard and black hat. The billboards, which appeared in New York and Hollywood for less than a week during 2007, included Allen's photo, text in Yiddish that translated as "The Holy Rebbe," and American Apparel's name. Allen's claim was mainly based on the New York Civil Rights Law, §§ 50-51.

American Apparel's answer to Allen's complaint cited free speech, public interest, fair use, parody and social commentary as defenses.

It is difficult, without the aid of psychoanalysts or psychiatrists, to discern any element of parody or social commentary from the American Apparel advertisement. Aside from his celebrity, it is equally puzzling why an ad featuring Woody Allen dressed in this garb would be "a matter of public interest," besides the mere fact that, hey, it's Woody Allen! And, while defense lawyers routinely argue in New York Civil Rights Law (and analagous) cases that the statute requires false endorsement for an ad to be actionable, that is actually not a required element of the cause of action. Falsely implied endorsement may indeed lead to liability, but is not required for liability under the New York Civil Rights Law. In any case, if Allen's endorsement was meant to be implied by his mere appearance in the ad, its meaning was obscure, to say the least.

American Apparel's insurance company apparently demanded over its owner's objection that they offer Allen the settlement. Insurance companies strongly prefer collecting premiums to paying out claims, especially a large settlement as they did to Allen. When a plaintiff's lawsuit appears questionable, they are not averse to awaiting a jury's verdict unless they perceive an overwhelming chance of being hit by a large judgment. Several levels of insurance company decisionmakers and their legal advisers are involved in such decisions before they will capitulate. The American Apparel billboards came about as close as you can get to the pure hijacking of an unwilling victim's persona for financial gain in commercial advertising. There was no reasonable excuse for it, not even in constitutional protections for freedom of speech. Both the insurance company and the court were mindful that Allen had previously been successful in preventing the commercial misappropriation of his image in advertising. (Allen v. Men's World Outlet, Inc., 679 F. Supp. 360 (S.D.N.Y. 1988)). That's why American Apparel's insurance company paid.

But why would they settle with Allen on the courthouse steps when, in the mid-1990s, the same court in the same federal circuit had already denied Groden's claim for the commercial use of his image? For that matter, why didn't the U.S. District Court for the Southern District of New York simply throw Allen's case out, citing the Groden case as a precedent?

Is there an inconsistency here? Is it hard to figure out?

Maybe another example will help to clarify why Groden's matter turned out one way, while Allen succeeded in his. Then again, maybe not.

Next: Barack Obama at The Great Wall of China