Last year, Woody Allen brought a federal lawsuit against American Apparel. The clothing company had used an image of him from the movie “Annie Hall,” where he was dressed as a Hasidic Jew. American Apparel did not ask permission to use the image. Woody Allen claimed that American Apparel had misappropriated his public image and smeared his reputation. Today, American Apparel has settled the lawsuit with Woody Allen for $5 million.
American Apparel argued that using the image of Woody Allen constituted free speech because it was a parody. Woody Allen argued that the advertisement exploited his image commercially. Before the settlement, American Apparel had plans to use very scandalous information about Woody Allen in the trial. Woody Allen’s current wife, Soon-Yi Previn, is the adopted daughter of Woody Allen’s former partner, Mia Farrow. Woody Allen had an affair with Soon-Yi Previn before marrying her in 1997. American Apparel’s lawyer, Stuart Slotnick, was prepared to introduce this evidence into trial. Woody Allen stated that this evidence was being used only to “smear” his reputation and had “absolutely nothing to do with the case.”
American Apparel clearly misappropriated Woody Allen’s identity when they used his image for their advertisement. The right of publicity is the right of an individual (usually a celebrity) to control the commercial use of his/her name, image, likeness, or other aspects of one’s identity. The right of publicity is generally considered a property right. Thus, in order to use one’s name, image, or likeness, the owner must grant permission to the user, or they must agree on some contractual compensation. American Apparel used Woody Allen’s image without permission, and the use was commercial because it was an advertisement for clothes and merchandise from American Apparel. This is clearly a misappropriation of Woody Allen’s right of publicity.
American Apparel claimed that they had a defense to liability because the use was a parody, and thus protected by the First Amendment. Parody is a work created to mock, comment, and poke fun of the original work by means of humorous imitation. Thus, in order for American Apparel’s advertisement to be a true parody, it must have been created for the purpose of making fun of Woody Allen, his films, his characters, etc. But the advertisement was not created for the purpose of making fun of Woody Allen – it was made for the purpose of advertising clothes and merchandise sold by American Apparel.
To make this clearer, let’s compare two cases. In Cardtoons v. Major League Baseball Players Association, Cardtoons produced trading cards featuring athletes from major league baseball. Each trading card had a different major league baseball star, and were drawn in a silly and satirical way (hence the name “Cardtoons”). The court found in favor of Cardtoons’ defense of parody – the purpose of the cards was to mock and poke fun at the major league baseball athletes and the Association itself. Contrast this case with White v. Samsung. Samsung made a robot that looked and sounded like Vanna White (from Wheel of Fortune). The robot was made to advertise Samsung’s new VCR device. Vanna White sued for misappropriation of her identity. The court rejected Samsung’s defense of parody. The robot was made not to poke fun of Vanna White, but was made to advertise the VCR.
This case presents similar facts to White v. Samsung. Vanna White’s identity was used to sell VCRs just as Woody Allen’s identity was used to sell clothes and merchandise. It is clear then that if this case went to trial, a court would have likely rejected American Apparel’s argument of parody.
It is also important to note that American Apparel would fail the “transformative use test,” which is a test to determine whether there is a First Amendment defense to a right of publicity claim. Essentially what this test means is that the more “transformative” the use, meaning the more changes are made to the original work, the more likely there will be a First Amendment defense.
Here, American Apparel did not make any changes. They simply placed the still shot of Woody Allen alongside the company name. There were no significant additions anywhere and no “transformation” of the image, just a single still shot of Woody Allen dressed as a Hasidic Jew. It is likely that a court would find that American Apparel did not “transform” the use of the image.
On a final note, whatever scandal Woody Allen was involved with, his personal issues with lovers and marriage have no bearing on the commerciality of his image. Maybe it would have something to do with his “reputation” being on the line, and perhaps Stuart Slotnick wanted to introduce the evidence to show that Woody Allen already has a bad reputation, hence he cannot be “slandered” by what is already true. But that information has nothing to do with Woody Allen’s right of publicity, which was the real issue here. Introducing that information to a jury would have been prejudicial and completely irrelevant. It’s a good thing that the case settled.
American Apparel is well known for their risky and controversial advertisements, and this was just another example of how far they will go to push the envelope. It unfortunately cost them $5 million, but that is no deterrent for one of the biggest fashion companies in the world. American Apparel will continue to produce ridiculous and absurd advertisements (tailoring to the younger generations), and will most likely encounter legal trouble again in the future.