Mad, Mad Men and Their Fleeting Misappropriation of a Womans Youth

March 14, 2013, 11:30 AM

By now most of you have read the glib articles that recount the suit by 1960s star, Gita Hall, against the iconic Mad Men television production company, Lionsgate. Seems that in inculcating the look and feel of the 1960s ad agency program in its opening credits, Lionsgate misappropriated for a fleeting couple of seconds the distinctive, likeness of Ms. Hall from a Revlon hairspray commercial of yesteryear without her permission. In most states, the unauthorized use of an individuals (dead or alive) name, likeness and even voice is a tort stitched together from vestiges of the right to privacy, the right to publicity (in some states) and common law property rights. Most state statutes and common law rights are almost strict liabilityno authorization, no defense. Ms. Hite, by all accounts, may very well will win her claim. But should this area of the law adopt a rule similar to that of copyright law that limits exposure if the use is de minimis? In our high tech, cellphone camera-ready society, it seems that the law is evolving in that direction.

One need only look to recent movies to see the attempt to limit such exposure under the copyright act. For example, in the Devils Advocate while John (Al Pacino) Milton plys his protg-apparent (Keanu Reeves) with the spoils of fathering the anti-Christ, the image of the famous Fredrick Hart sculpture, Ex Nihilo, briefly comes to life through the magic of CGI. Similarly, in the movie 12 Monkeys, the drawings of Lebbeus Woods were used to create a room that is depicted in four brief scenes in the movie. And, more recently, the copyrighted. black and white self-portraits of Jorge Antonio Sandoval appeared in New Line Cinemas Seven. In all of these cases the Courts groped, to different degrees, to dilute the almost strict liability of Copyright law for the brief use of copyrighted materialsthe result of which is a confusing mlange of inconsistent rules that range from appropriation is appropriation which is actionable to a test that seeks to determine h0w prominently is the work displayed and how similar is it to the copyrighted work. Cf.Woods v. Universal City Studios, Inc.with Sandoval v. New Line Cinema Corp.

More directly, there are several lines of cases in the name and likeness area, that allow some defense for the fleeting use of the individuals name or likeness. Thus, where the use is an incidental use, under which the use of the plaintiffs image is fleeting or de minimus in the broader context of the medium at issue, the courts allow the use without liability. Indeed, under the New York statute that has been the inspiration for most similar laws around the countryincluding Virginias Name and Likeness Statue, such an exception has developed. See, e.g., Candelaria v. Spurlock. 2008 WL 2640471, at *3 (E.D.N.Y.) (four second use of image in McDonalds supersize me advertisement). The Seventh Circuit similarly has adopted this incidental use defense. See, e.g., Bogie v. Rosenberg (Incidental use of sixteen second interview with individuals likeness in Joan Rivers documentary not actionable).

At bottom, the use of anothers name or likeness without express authority (usually written) can bring liability. If you cannot get permission, any use should be brief and de minimus. Even then, there is not guarantee that the mad men of the judicial system will not require you pay reimbursement.

Stephen E. Noona is the head of Kaufman & Canoles Trial Section and Co-chair of its Intellectual Property Law and Franchising Practice Group. He has been counsel in over one hundred (100) patent cases and many trademark and copyright cases in the Eastern District, is Fellow in the American College of Trial Lawyers, and has appeared before the judges in all four Divisions of the Eastern District on patent and intellectual property matters.Stephen E. Noona