For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Saturday, 10 August 2013

The end: Mad Men litigation settled

Revlon's Satin-Sat hairspray ad
"How do you sleep at night?

"On a bed made of money", replies Don Draper in one of the many brilliant episodes of iconic TV series Mad Men

Now the question is whether also former model, actress and socialite Gita Hall May may be able to respond the same. 

As readers will remember, earlier this year the IPKat reported news (here and here) of the lawsuit that Ms May, now 79, filed against against Mad Men producer Lionsgate over the TV drama's award-winning opening credits
Mad Men's opening credits

Accompanied by the instrumental song A Beautiful Mine by RJD2, the TV series opening sequence includes the image of a businessman falling through skyscrapers and buildings against a backdrop of more than forty period advertisements from the late 1950s and early 1960s. 

Among other things, there suddenly appears a cropped version from a 1950s photograph of the plaintiff that legendary Richard Avedon took for the Revlon's 'Satin-Set' hairspray ad. 


Ms May claimed that she consented to the use of her likeness, and the picture by Avedon embodying it, only for the then-current Revlon campaign, and that at no time did she consent to have it included in Mad Men's opening sequence.

That's it: case closed
Defendant Lionsgate rooted its defence within First Amendment arguments, stressing in particular the transformative value of Mad Men's opening credits. As such, the transitory use (just a few moments) of Gita Hall May's likeness was said to constitute conduct by Lionsgate "in furtherance of its exercise of free speech relating to a matter of public interest".

This Kat was anxiously waiting for the Los Angeles Superior Court to decide the case. 

However, her expectations suddenly dissolved yesterday, when she discovered via The Hollywood Reporter that the parties have concluded a settlement agreement.

Russell Christoff and
"his" Taster's Choice
In the same article, The Hollywood Reporter recalls the precedent of school teacher and model Russell Christoff, who in 1986 was paid $250 to pose for a photograph to be used in Canada on Nestlè coffee bricks. 

Sixteen years later, he saw his face on a jar of Taster's Choice instant coffee (owned by Nestlè) in the US and so discovered that his image had been used without his consent on millions of labels sold internationally (including Mexico and other Latin American countries) for the preceding five years. Christoff brought proceedings against Nestlè and a jury awarded him more than $15 million in damages. 

The Court of Appeal reversed. While agreeing with the Court of Appeal that the judgment must be reversed, in 2009 the Supreme Court of California held (see herehere and here) that Christoff's action was not necessarily barred by the single-publication rule [under this rule, proceedings can be brought within two years from the first publication of the allegedly infringing material] if he could show that Nestlé had hindered his discovery of the use of his photograph, or that the label had been republished.

In the case of non-cable subscriber Ms May, although Mad Men premiered in 2007, she only learned that her likeness was used without her consent when her granddaughter pointed it out to her in May 2012. 

The terms of the settlement concluded by the parties have not been disclosed, but this Kat suspects that its financial terms might not be completely neglectable.

1 comment:

Roufousse T. Fairfly said...

The Mad Men case is somewhat unusual in that advertising is used as a substrate for artistic creation, not unlike the collages typical of the early 20th century.

The reverse would be more typically be the case, as in this affair from Germany. A garment chain store HQed in Braunschweig used a motive representing a tongue sticking out for a sales campaign. The Rolling Stones are suing and reportedly asking in 250 kEUR in damages. The talking head in the video who quite professionally explains this case is Edgar Lins. Some might recognise in his name the author of that doctoral dissertation I mentioned in the poisonous patent priority saga. I had no idea that he was also into trademarks and designs.

Returning to the Mad Men story, I looked at a few excerpts of the show on the internet. Interesting. The references to actual existing brands and well remembered advertising campaigns are so many and explicit that I wonder how they did their legal clearance. Or is this show one gigantic product placement? This could perhaps explain why the matter was settled out out court as the plaintiff's case didn't look that strong me.

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