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Monday, 18 March 2013

Iconic 1950s model sues MadMen over unauthorised use of her image


The controversial image in
MadMen's opening credits
There are pieces of news that even IP bloggers might fail to notice but that - via most unexpected information channels - are then brought to their attention.

While on the plane which was bringing her to the lovely city of Copenhagen, this learned and very serious Kat was enjoying reading her own copy of Grazia (besides, of course, the latest issue of the Journal of Intellectual Property Law & Practice).

Having learnt what she needed to know about new spring trends (yes! fashion emperors say that it is all about bold colours and clashing prints this year) and got all the latest updates re:the royal pregnancy, she found out (much to her shame, since she loves the TV series) that MadMen is now at the centre of an IP-related battle.

Revlon's Satin-Set hairspray ad
As was first reported by Deadline, at the beginning of this month well-known 1950s and 1960s model, actress and jet-set personality Gita Hall May filed a lawsuit against Lionsgate over award-winning MadMen's opening credits, claiming that these use an image of her without her consent.

As explained in the complaint filed at the Los Angeles Superior Court, the opening credits show the image of a businessman falling through the canyons of Madison Avenue (this iconic New York location was at the heart of American advertising industry in the 1960s), "starkly outlined against a backdrop of office buildings, martinis, stockings and period advertisements from the late 1950's and early 1960's. By design, these ads depict iconic female beauty of the age, images that instantly evoke recollections of this now-distant time, intriguing the viewer - and suddenly there is the face of a ravishing red-haired beauty, her eye piercing the screen, her look that perfectly personifies the period." 
Also Kats need (a lot of) hairspray!

Well, it happens that the beauty in question is the plaintiff, now 79, and the image used is a cropped version from a 1950s photograph of her that legendary photographer Richard Avedon took for the Revlon's 'Satin-Set' hairspray ad. 

Apparently Ms May consented to the use of her likeness, and the picture by Avedon embodying it, only for the then-current Revlon campaign. At no time did she consent to have a cropped version of this image used, forty years after it was taken, for the celebrated TV series.

Despite the commercial success of MadMen, Lionsgate has apparently refused to compensate the plaintiff for the value that her image contributed to the TV series (MadMen's main titles were even the subject of their own Emmy award, winning over all others for "Outstanding Main Title Design") or the revenues that her image contributed to the resulting profits (apparently Lionsgate has generated income in excess of $1 billion through exploitation of the TV series).

Although MadMen premiered in 2007, as reported by E! News, Ms May only learned that her likeness was used without her consent when her granddaughter pointed it out to her in May 2012. The former model was "shocked" and "felt as if her rights were violated." 

As explained by the plaintiff’s attorney, although she does not own the picture, Ms May has the right to her likeness. This is why she has decided to seek redress for the unauthorised use of her image, on grounds which include, among other things, misappropriation of right of publicity for commercial purposes; invasion of common law rights of privacy; and violation of the unfair competition law and false advertising law.

Will Gita Hall May succeed in court? We’ll see about this. In the meanwhile, what seems certain is that, after Don Draper's identity deception story and divorce from Betty, this is a most interesting addition to this glamorous TV series's plot. 

5 comments:

Anonymous said...

If its rights in her likeness she has, is that still like her 79 year old self?

Ron said...

I understand from a lecture given by a visiting US attorney last year, that the right to ownership of one's image is enshrined in the law of individual US states as opposed to Federal law, and that it is not found in the law of all US states. The image ownership right persists for a term (I forget how long) after death, and passes to one's heirs, hence the control that the heirs of Elvis Presley have over the use of his image in those states of the US where this law applies. Nevada is a notable exception, hence Elvis lookalikes can operate freely there.

Andy J said...

Ok so I know very little about the operation of the Californian Civil Code Section 3344 (the Celebrities Rights Act) but a brief reading of it does not seem to establish a strong case for Ms Hall May.
Subsection (a) outlines the main protection of the law which seems to be against the unauthorised use of an image etc of a person in connection with advertising or merchandising of goods or services. Does the title sequence of a TV show really meet this criterion?
This is underlined in the second sentence of subsection (e): "Rather it shall be a question of fact whether or not
the use of the person’s name, voice, signature, photograph, or
likeness was so directly connected with the commercial sponsorship or
with the paid advertising as to constitute a use for which consent
is required under subdivision (a)".
Perhaps one of the blog's US readers could comment on the strength of her case.

Anonymous said...

I'm not an expert on this area of law, but if someone has consented to (and presumably been paid for) being photographed for an advert, it seems unlikely that additional use of that photo could be described as an "invasion of common law rights of privacy".

Wasn't there a UK case where a photo of Eddie Irvine was edited to look as though he was endorsing a radio station, and the court awarded him a derisory amount in damages as if to say that weren't keen on this particular right?

Ron said...

A "Model Release Form" would undoubtedly have been signed which would set out how the photographs could be used. You can find numerous examples on the web, all different! A version that was used in the UK in the 1960's by photographers taking photos for advertising purposes, specified that the photographs were deemed to be of an imaginary person unless agreed otherwise, and that the model relinquished any claim to copyright. A famous person with a good agent would be unlikely to have agreed to such terms in her model release form, and the terms of the model release form that was actually signed will no doubt be crucial to the outcome.

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