Reality TV performer and frequent athlete girlfriend Kim Kardashian filed a $20 million lawsuit Wednesday against retailer Old Navy and parent company Gap, Inc. for this Old Navy advertisement, in which a striking brunette lady (played by Melissa Molinaro) gets photographed by the paparazzi, talks her way out of tickets, and wears various clothes available only at Old Navy.
Kardashian, who is also striking, a brunette, and a favorite target of tabloid photographers, claims the ad--called "Super C-U-T-E"--violates her "right to publicity"--in a nutshell, the right to control how her image is used for commercial endeavors. The ad implies she endorses Old Navy, which she doesn't.
We wouldn't want a thinly-veiled, not-too-nice version of us starring in a national advertising campaign either, but Kardashian's lawsuit, if successful, has the potential to make life very difficult for people of all hair colors, writers of fiction, ad companies grasping for pop culture relevancy and anyone who looks or sounds like a famous person.
The nearest precedent we found for Kardashian's claim is a lawsuit by Bette Midler against Ford Motor Co. and ad firm Young & Rubicam, accusing them of violating her publicity rights by hiring Midler "sound alikes" to cover her cover of Bobby Freeman's "Do You Wanna Dance?" in ads for the 1986 Sable. The charges against Ford were dismissedbut in 1989, a jury came back with a ruling that favored Midler and found Young & Rubicam's campaign violated the singer's right to publicity.
This was ridiculous, for reasons Young & Rubicam attorneys Robert Gallagy and Mario Aieta detailed in an article for Communications Lawyer magazine a year later. Midler's right to publicity wasn't violated even though "Section 3344 of the California Civil Code, which prohibited the use of another person's 'name, photograph, or image' in an advertisement without written consent, had recently been amended to include 'voice'." Because it wasn't her voice. It was the work of a back-up singer, a soundalike, a mimic, a fake."Imitation is now a tort under California law," groaned the lawyers.
That's the problem--or maybe opportunity--facing Kardashian. Looking like Kim Kardashian is not a crime. Neither is acting like Kim Kardashian. When Arnold Schwarzenegger sued an Ohio-bobblehead outfit because, according to court papers, he“does not permit [his] name, photograph, likeness or voice to be used on commercial products, on packaging of commercial products or in advertising for commercial products or services,” that seemed reasonable an effort to protect one's copyrights. Same thing with Johnny Carson suing the company behind "Here's Johnny!" portable toilets. But it's not like Kim Kardashian invented acting like Kim Kardashian. There have been people with similar personalities and attributes who simply weren't on TV.