In addition to copying everyone from Cushnie et Ochs and Anthony Vaccarello to really young brands like Molly Goddard, Nasty Gal is offering a particuarly interesting (and legally problematic) t-shirt. The shirt reads: “You’re the Ashley to my Mary-Kate,” a clear reference to child stars-turned-creative directors, Mary-Kate Olsen and Ashley Olsen. While not a copy of any design from the twin’s upscale collection, The Row, or in direct violation of any federal trademark registrations (the twins rather surprisingly have not registered their first names together), the t-shirt at issue is not necessarily in the clear in terms of legality. In fact, chances are, the t-shirt, which is made by Los Angeles-based brand, Hips & Hair, is running afoul of the law in a different way: By violating the twins’ rights of publicity.
In general, the right of publicity grants individuals the authority to control the commercial use of his or her name and/or likeness. To hold someone liable for the unlawful use of a person’s name or likeness, a party typically must show that an attribute protected by law (read: name, picture, voice, etc.) is being used for exploitative purposes without consent. As is typical with the law, it’s not actually that simple, though, because right of publicity laws vary from state to state.
Because both Nasty Gal and Hips & Hair are headquartered in California, we’ll consider the rights provided by that state. Put simply, a plaintiff (the Olsens, in our hypothetical case) is required to show that the defendant(s) (Hips & Hair and Nasty Gal) used plaintiff’s identity; for the defendant’s advantage; that the plaintiff did not consent to such use; and the plaintiff was harmed by the use. Additionally, in California, where there are both statutory and common-law protections for the right of publicity, the plaintiff must also show that the defendant(s) knowingly used of the plaintiff’s name (or photograph or likeness) for commercial purposes and that there is a direct connection between the use and a commercial purpose.
It seems like a pretty straightforward case, as the hypothetical defendants (Hips & Hair and Nasty Gal) used the Olsens’ names for their own advantage (think: selling t-shirts to make money) and without the Olsens’ consent, as chances are the notoriously private twins almost certainly did not grant the aforementioned brands the right to use their names. As for the California-specific elements, it would likely be very difficult for Hips & Hair and Nasty Gal to show that they did not respectively make and stock the t-shirt at issue without knowing using the Olsens’ names for a commercial purpose (and without consent) and that such usage was not for the purpose of profiting on the widespread awareness and appeal of the twins.
So, with this in mind, is all hope lost for the notorious copycat website and the manufacturer? Technically not. There are a couple of defenses that might be useful. First, an oft-used defense against right of publicity claim is First Amendment protection of the use in question. This would apply if said use of someone's name or likeness in a creative, entertaining, or artistic work is transformative – i.e. there are substantial "transformative" elements added to the use of a person's likeness instead of just the mere depiction of a person. We can’t imagine this being all that helpful in this case, as the t-shirt for sale simply puts the twins’ names in a cute little saying. There’s arguably nothing extraordinarily transformative in that.
Secondly, there is also a defense available if the use of the Olsens’ names, for example, is only incidental to other purposes, and not intended to profit off of the person's "reputation, prestige, or other value." Could this defense fit here? Not likely. In fact, our guess is that the whole point of using these particular likenesses is, in fact, in order to profit of their reputation. Thoughts?