Follow-up to the Mad Men lawsuit: opening sequence claimed to be protected by First Amendment

One of the over 40 ads
featured in Mad Men's
opening credits and ...

A few weeks ago the IPKat reported news of a lawsuit that 1950s "ravishing red-haired beauty" Gita Hall May, now 79, filed against producer Lionsgate over its award-winning 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 40 period advertisements from the late 1950s and early 1960s. Among others, 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. 

.. Revlon's Satin-Set
hairspray original ad

Ms May claims that she consented to to the use of her likeness, and the picture by Avedon embodying it, only for the then-current Revlon campaign.

While Revlon granted permission to Lionsgate to use the 'Satin-Set' hairspray ad, at no time did the former model consent to have a cropped version of her image used for the celebrated TV series. As a result, she decided to file a lawsuit before the Los Angeles Superior Court, seeking compensation for inclusion of her image in Mad Men's opening credits.

As this Kat could appreciate from the always juicy stories told by the Hollywood Reporter, a few days ago Lionsgate filed its notice of motion and special motion, pursuant to Section 425.16 of the California's Anti-SLAPP [Strategic Lawsuit Against Public Participation] Law. This piece of legislation was enacted following "a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." 

Jon Hamm as über-cool
Don Draper and ...

Lionsgate's defence is indeed rooted within First Amendment arguments, ie free speech and transformative value of Mad Men's opening credits. As such, the transitory use of Gita Hall May's likeness is said to "unquestionably" constitute conduct by Lionsgate "in furtherance of its exercise of free speech relating to a matter of public interest".

In addition, 

"Visible for barely more than one second, the image from the advertisement ... has been altered and combined with dozens of other creatively altered images also taken from period advertisements and with new creative elements to form a highly distinctive opening sequence that is as much creative expression as the content of the [Mad Men TV] Series itself." 

... another case of
(un)authorised use of likeness?

As the TV series and its opening credits constitute expression that contains significant transformative elements rather than a literal depiction or imitation of a celebrity for commercial gain without adding significant expression, the series itself is entitled to First Amendment protection. As clarified in Comedy III Productions v Saderup, this protection should prevail over the plaintiff's publicity rights.

We'll see how things develop. 

For now, it would seem that Lionsgate is quite confident that Gita Hall May's claims will be dismissed. Actually, it appears so confident that its special motion could have well included the following memorable Don Draper's quote:

"I'm glad that this is an environment where you feel free to fail."