Lionsgate, the producer of the television show “Mad Men,” recently settled a right of publicity lawsuit brought by 79-year-old former model Gita May Hall for using her image without her consent in the opening credits of the show. The opening credits feature an animation of a businessman falling slowly from a skyscraper. As the man falls, images of 1950s era advertisements featuring models are seen superimposed onto surrounding skyscrapers. The advertising images continuously morph as the man falls and the viewer’s perspective changes. One of those images, a decades-old Revlon ad for “Satin Spray” hairspray, featured a much younger May Hall and formed the basis of her lawsuit.
According to her attorneys, May Hall was a “famous celebrity from the 1950s [and her likeness was used only] to promote and burnish the image of the show in the eyes of the public and to create ‘the feel’ of the program that was critical to its commercial success.” While we tend to doubt that May Hall’s image was particularly critical to Mad Men’s success, many sound reasons exist for why Lionsgate may have opted to settle rather than litigate. Perhaps most persuasively, it seems like a reasonable choice to not litigate with a 79-year-old woman who (rightly or wrongly) feels like she has been harmed. Whatever its reasons, though, had Lionsgate opted to defend this suit, May Hall’s likelihood of success was not high, as a number of defenses were present.
First, under California law, right of publicity claims are subject to a two-year statute of limitations from the date of first publication. Mad Men, and its opening credits, first premiered on July 19, 2007. Thus, barring some unusual circumstances, May Hall’s claim likely would have needed to have been commenced by July 19, 2009. Second, California’s interpretation of the First Amendment as applied to the right of publicity allows for the “transformative” use of a celebrity’s likeness without permission or compensation. Lionsgate would likely have argued (persuasively in our view) that Mad Men’s use of May Hall’s image was transformative.
The right of publicity exists to protect a well-known individual’s economic interests in controlling how their image is commercially exploited. Thus, an exact, literal depiction of a celebrity’s likeness used commercially will not likely be considered a transformative use, and would probably result in liability under a right of publicity claim. Conversely, “when a work contains significant transformative elements, it is not only especially worthy of First Amendment protection, but it is also less likely to interfere with the economic interest protected by the right of publicity.” Comedy III Productions v. Gary Saderup, Inc., 21 P.3d 797 (Cal. Sup. Ct. 2001).
Here, it is highly unlikely that Mad Men’s use of May Hall’s image in the opening credits as one of many images that continuously morph as a business man plummets to his demise, could properly be characterized as anything other than transformative. At the very least, a fact finder would not likely determine that the use of May Hall’s image was merely a literal depiction or imitation utilized solely for commercial gain. Accordingly, although many reasons for settling a dispute exist beyond the merits of a particular claim, we would suggest that it is likely that the defendant would have prevailed.
Finally, unlike other forms of intellectual property such as copyright and trademark rights, which are governed by federal law, laws protecting the right of publicity vary among the fifty states. While there is some sense of uniformity, there is also quite a bit of nuance between jurisdictions. Thus, anyone considering bringing, or finding themselves forced to defend, a right of publicity action should consider counsel familiar with that state’s controlling authorities on the issues. With offices in multiple jurisdictions including California, New York, Washington DC, Georiga, Colorado, Washington, and North Carolina, Kilpatrick Townsend is equipped to handle right of publicity claims in every U.S. jurisdiction.