As I admitted in my post about The Jersey Shore, I enjoy reality TV. I love to watch footage of fame cravers living in unnatural surroundings, edited into a potentially amusing storyline. Depending on a character’s success at connecting with the audience, these shows can even lead to endorsement deals. The Situation peddles an abdominal workout and Snooki lends her personality to a pistachio campaign.
But this post isn’t about New Jersey’s inhabitants. This post focuses on famous Californian reality TV personality, Kim Kardashian. In the case of the Cute Kim Lookalike, You Be the Judge.
Socialite Kim Kardashian rose to fame due to, um, I’m thinking it had something to do with her looks and a NSFW video. Ms. Kardashian’s most recent entrepreneurial ventures include acting, modeling, singing, starring in several reality shows, co-founding shoedazzle.com, and designing jewelry.
Old Navy is an American clothing brand owned by Gap, Inc. Old Navy often features celebrities, musicians and models in their kitschy advertisements.
In February, 2011 Old Navy premiered an advertising campaign staring Melissa Molinaro. The ad shows a beautiful brunette with perfect hair and makeup singing about her “real life.” She wakes up, gets a mani/pedi/root canal, walks her dog, grocery shops, and avoids a traffic ticket while being photographed by paparazzi. Several wardrobe changes and dance numbers later, the viewer learns where to purchase this woman’s “super cute” jeans.
In July, 2011 Kim Kardashian filed a complaint against Gap, Inc. According to the complaint, she is a “pop culture icon” and among the “top celebrities who drive the most consumer traffic.” Her “name, likeness, identity and persona have become commercial assets” as she selectively endorses a variety of products. She claims that Old Navy intentionally confused the public and took steps to “perpetuate their unlawful exploitation of Kim Kardashian’s likeness, identity and persona for [Old Navy’s] commercial gain.” Ms. Kardashian asserts her likeness was used for commercial gain without consent and the campaigns are in violation of several laws, including California’s right of publicity.
Publicity rights have been recognized in the U.S. in at least 28 states. The right is generally invoked in the context of commercial speech, when a company uses celebrity’s name, likeness, or voice in connection with a product, thereby creating a false and misleading impression that the celebrity is endorsing the product. California authorizes a cause of action by any living person whose name, photograph, or likeness has been used for commercial purposes without consent.
Old Navy may argue that both Melissa Molinaro and Kim Kardashian are brunette singers, models and actresses. Ms. Kardashian’s likeness was not used. But if the court finds a similarity, the advertisements are not confusing and should constitute a parody and therefore free speech and fair use.
Do you think that Old Navy violated Kim’s right of publicity? In the case of the Cute Kim Lookalike, You Be the Judge.
Sarah Feingold is Etsy's in-house attorney. She is also a jeweler with an extreme sweet tooth.