© 2011 John Cornell Fuller
In a recent complaint, reality television star Kim Kardashian alleged that clothing chain Old Navy violated her right of publicity. Specifically, she contends that Old Navy, and its parent company, the Gap, violated her publicity rights by producing a television commercial where a Kardashian look-alike sings about looking ‘cute’ while she goes about her daily life. Enjoying a rise to popularity as a reality star, however, may have left Kardashian without the clearly visible elements of persona that many celebrities have used to defend their publicity rights in the past.
The Right of Publicity
The right of publicity protects an individual’s control over the commercial use of their name, image and likeness. It is, at its core, a property right based on the idea that individuals are entitled to any financial benefits their persona and its goodwill (i.e., their personal ‘brand’) can generate. Though states vary greatly in their recognition and definition of the right; California, where the lawsuit was filed, offers broad protection under common law and an expansive right of publicity statute. California’s high level of protection often tips the scales in favor celebrities seeking to defend their publicity rights as long as they can demonstrate that their persona has been used without consent.
Kardashian’s complaint makes its clear that she did not give consent, nor do the circumstances indicate that Old Navy felt it was using her likeness and needed to ask permission. Therefore, the sole issue becomes whether the Old Navy advertisement, viewed as a whole, in fact appropriated her persona. Over the past few years, the rise of reality television has generated novel questions about the right of publicity. The majority of the new challenges, however, relate to the blurring of the line between privacy and publicity. Often the claims are essentially contract disputes over the right of the producers to show certain footage or use a popular participant’s image for future advertising. These cases share the key fact that the producers used the actual image of the complaining party. The Kardashian case is quite different in that no actual images are used and thus the complaint must rely entirely on the misuse of her likeness.
Methods of Defining Likeness
In determining whether one’s persona has been misappropriated, the first step is for the claimant to identify the relevant elements of his or her persona that have been misused. It is a seemingly simple question, but in the age of reality television stardom and the paradoxical ability to gain celebrity without demonstrating unique talent, defining one’s persona becomes a more difficult task.
The question therefore becomes, what attributes uniquely define Kim Kardashian’s persona? Surely both parties in the case would admit a striking physical similarity between Kardashian and the actress in the commercial. But is that enough?
Woody Allen did successfully defend his right of publicity against a video rental chain whose advertisement depicted an Allen look-alike as a patron of one of their stores. However, in addition to the actor’s resemblance to Allen and his donning of thick-rimmed glasses, the advertisement included a portrayal of Allen’s meek demeanor as well as tapes of some of Allen’s well-known films sitting at the checkout counter. This combination of elements satisfied a New York court that Allen’s likeness had been used without his consent. What remained unclear is what role the pure physical resemblance played in the court’s decision. The other elements, such as the fact that the actor performed in Allen’s timid manner, the presence of the identifying video tapes and even the film-related context of the advertisement all undoubtedly contributed to the portrayal of Allen.
Defining Likeness for a Reality Star
For a reality star, however, identifying and claiming ownership over the non-physical cues is far more difficult. By their very definition, reality stars – no matter how melodramatic – are not famous for a particular performance or role, but for how they deal with the struggles of everyday life. Therefore many reality stars do not enjoy associations with iconic characters or previous works, the traits of which are often used to indirectly identify actors and actresses (e.g., Woody Allen’s stereotypically nervous characters or his direction of Annie Hall).
Nevertheless, Kardashian argues that the storyline of the Old Navy advertisement – a well-dressed young girl eating breakfast, shopping and even going to the dentist – is so similar to the content of her reality show that it actually further evokes her persona. This argument opens an entirely new question of whether the performance of mundane, everyday tasks can somehow become uniquely attributable to an individual. In other areas of Intellectual Property, for example trademark law, the widespread use (i.e., genericization) of a mark can lead to the loss of protection because the mark is no longer associated with a single source. Similar logic would lead one to think that the performance of generic tasks could not be considered evidence of one’s unique persona. That said, the right of publicity is a distinct area of law and an advertisement’s inclusion of stylized reality show elements may demonstrate intent to represent a reality show star. Regardless, Kardashian’s attorneys may now have the added challenge of convincing the court that performing common tasks can be indicative of a particular individual. If they are unable to do so, the case will hinge solely on the physical similarities between Kardashian and the Old Navy actress. Though there is a remarkable resemblance, they are still, in essence, simply attractive brunettes. It is unclear whether, without additional persona cues, sheer physical similarity will be enough to satisfy the court that her likeness was misappropriated.
As in most right of publicity cases, the key determination will be whether the claimant’s persona has been used. Unlike most high-profile right of publicity cases; however, there are serious questions as to what exactly Kim Kardashian’s persona is. Beyond clear physical similarities, there are few, if any, of the non-physical cues that have proved necessary to defend publicity rights in the past. A decision in favor of Kardashian could broaden celebrity protection even further in California, while an unfavorable verdict could limit future claims by reality stars known only for their looks. Whether the law should protect the commercial value of those whose celebrity is based on talents that are not readily discernable is, perhaps, a deeper social question.