Image: via complaint

Kim Kardashian is suing a mobile app developer for more than $10 million for allegedly using a photo of her to promote its “selfie beauty” app and subscription services without seeking her authorization to do so. According to the complaint that counsel for Kardashian filed in a California state court this week, iHandy engaged in “a calculated unlawful scheme to usurp, use and exploit [her] image, celebrity and universal recognition in a world-wide marketing campaign” for its own gain, “reaping millions of dollars’ worth of advertising and promotional services from [her], all without paying for it.”

In the 14-page filing, Kardashian’s counsel claims that “in or about September 2019,” iHandy published an advertisement for its “Sweet Cam” app that consisted almost exclusively of a photo of Kardashian that she had posted to her Instagram account in October 2017 “to promote her own KKW Beauty cosmetics.” By copying and making use of the image, iHandy not only piggybacked on Kardashian’s “world-wide instantly recognizable celebrity persona,” the Hong Kong-headquartered company, which also maintains a presence in the U.S., engaged in a “blatant unlawful scheme of infringement and misappropriation of KKW’’s right of publicity.”

Such unauthorized use of her likeness is particularly problematic, Kardashian claims, because she has built up  “sufficient notoriety, recognition, reputation and influence” in connection with her name and likeness, thereby “creating considerable commercial value in her identity.” As a result of that commercial value,” Kardashian is “highly paid for her select endorsement or sponsorship of or affiliation with products, including of beauty industry and social media related products or services.”

 image via complaint image via complaint

In order to “maximize the commercial value in her identity and to limit diminishment to that value, [Kardashian] and her representatives restrict the use of her publicity rights in the selection and agreement to enter into an association for advertising deals for company and/or product sponsorship,” the complaint further asserts, noting that Kardashian “does not use, like, nor endorse” iHandy’s app and did not “authorize or agree to license use of [her] name, photograph, image or persona, in whole or in part, to any of the defendants to advertise or promote [their] products or services.”

As a result of the foregoing, Kardashian sets forth a single claim of common law misappropriation of the right of publicity, a state law claim that gives individuals the ability to prevent others from commercially exploiting their names and/or likenesses without permission, and alleges that she has been “damaged in an amount not yet fully ascertainable but which is believed to be in excess of $10,000,000, including for the loss of the monetary consideration that would customarily be paid to [her] to license [her] name, photograph, image and/or persona in connection with use of her image for endorsement or sponsorship for commercial use and exploitation.”

While Kardashian does not set forth an emotional distress claim, focusing instead on iHandy’s “shady business practices, infringement and misappropriation,” she asserts that in addition to monetary damages, she has “suffered emotional distress as a result of the use of her image without compensation.”

The case comes less than a year after Kardashian filed suit against British fast fashion brand Missguided for trademark infringement and right of publicity violations in connection with its use of her name and images of her to promote its copycat garments and accessories. In July, a California federal judge gave the go-ahead to a default judgment in Kardashian’s favor, ordering the American arm of the British fast fashion retailer to pay up $2,700,000 in damages and $59,600 in attorneys’ fees to Kardashian after it failed to respond the reality star’s lawsuit. The case is still pending, as Kardashian is seeking additional action on behalf of the court in connection with the British arm of the brand.

*The case is Kim Kardashian West v. iHANDY LTD., et al, 19STCV38839 (Cal. Sup).