Kim Kardashian Claims that Old Navy Ad Violates her Right to Publicity

Our Chicago intellectual property lawyers were intrigued when, on July 20, reality star and celebrity Kim Kardashian filed a $20 million lawsuit in a federal district court against Old Navy and Gap, Inc., its parent, for using her doppelganger in an advertisement for the retail store.

First aired in February 2011, the ad shows the "look-alike" getting her picture taken by the paparazzi, finessing her way out of tickets, and dressing in clothing particular to Old Navy. The ad has already been viewed more than two million times on Old Navy's YouTube channel.

Kim Kardashian is arguing that the advertisement violates her "right to publicity" because it portrays her as falsely promoting Old Navy. She contends that since consumers may become confused by the advertisement and its endorsements, the advertisement violates her right to publicity noting that she "has invested substantial time, energy, finances, and entrepreneurial effort in developing her considerable professional and commercial achievements and success, as well as in developing her popularity, fame, and prominence in the public eye."

The right of publicity prevents the unauthorized commercial use of an individual's likeness, name, or some other recognizable quality. This means that the right of publicity gives an individual the limited right to license his or her identity for a commercial reason. The purpose behind the right of publicity is the protection of a person's economic interests.

This is not the first time that a celebrity has asserted her right of publicity. Bette Midler had previously filed a lawsuit against Ford Motor Co. alleging that the company violated her publicity rights by hiring an individual that sounded like her to sing in a car commercial. The jury ultimately ruled in favor of Midler holding that it is unlawful to imitate a person's voice to sell a product if the person has not given permission.

Although Bette Midler was successful, that does not necessarily mean that Kim Kardashian will be as well. To prevail under California law, she will have to establish the "knowing use of [her] name, photograph, or likeness for commercial purposes, and a direct connection between the use and the commercial purpose."

This is an interesting case and is a little different from soundalike cases, like Midler's. For example, with a "lookalike," the viewer has more information and opportunity to evaluate the actor. And, in this situation, there is no use of Kardashian's name. (We're not informed about reality TV news enough to know whether any ad elements would resemble any "signature" aspects of Kardashian's persona.) However, it seems highly likely that Melissa Molinaro, the ad's actress, was selected with awareness of her physical similarities to Kardashian and there is a reference to celebrity status in the ad. Furthermore, there clearly is a commercial purpose if a jury would find that the portrayal constitutes Kardashian's "likeness."

In any event, it seems like Kim Kardashian will not give up without a fight. Gary Hecker, the attorney who filed the suit on Kim Kardashian's behalf, noted that "Kim Kardashian is immediately recognizable and is known for her look and style. Her identity and persona are valuable. When her intellectual property rights are violated, she intends to enforce them." That is a very bold statement, and it will be interesting to see if it will be realized.

This post was prepared by summer research assistant Yelena R. Our Chicago business attorneys regularly assist clients with advertising, marketing and related intellectual property matters and our available to meet about your corporate law needs in Chicago, Deerfield, Northbrook, Oak Brook, Rosemont, Schaumburg, Skokie and other offices in the area.