Gucci family members hinted at potential litigation in connection with the highly-anticipated release of the House of Gucci this past week. In the wake of the debut of the Ridley Scott-directed film, which stars Lady Gaga, Adam Driver, Jared Leto, and Al Pacino, among others, the heirs of former Gucci chairman Aldo Gucci issued a statement, first published by Italian media, slamming the film – for the second time this year – as “carrying a narrative that is far from accurate” and as portraying “a tone and an attitude to the protagonists of the well-known events that never belonged to them.” 

“The production of the film did not bother to consult the heirs before describing Aldo Gucci,” who was the “president of the company for 30 years, and the members of the Gucci family as thugs, ignorant and insensitive to the world around them,” the Gucci family statement said, further asserting that the film – which is largely based on Sara Gay Forden’s 2001 book, The House of Gucci – is “extremely painful from a human point of view and an insult to the legacy on which the brand is built today.” 

“Gucci is a family that lives to honor the work of its ancestors, whose memory does not deserve to be disturbed to stage a spectacle that is untrue and which does not do justice to its protagonists,” the statement continued, and ultimately revealed that “the members of the Gucci family reserve the right to take action to protect the name, image and dignity of themselves and their loved ones.”

What Rights Does the Family Have?

As for whether the Gucci family members have legal grounds to proceed on in the U.S., which is where the relevant production and distribution companies for the film and its directors/producers are located, it seems unlikely. Primarily, it is worth noting that while the Gucci family maintains the ability to use their last name in a personal capacity, the majority of the rights in Gucci trademark – for use on everything from apparel and accessories to retail stores services, etc. – are held by Kering. After all, the French luxury goods conglomerate acquired a controlling 42 percent stake of the Gucci Group in 1999 for $3 billion following a long and very public battle with luxury rival for the brand. Later in 2003, Kering raised its stake in the Gucci Group to 67.6 percent, and again in 2004 to 99.4 percent. (For a full look at Kering’s quest for the Gucci Group, you can find that here.)

As the owner of the brand, which is the entity that is actually and consistently using the Gucci trademark in commerce across an array of goods and services, Kering’s rights almost certainly trump those of Gucci family members from a trademark perspective. This is true in the U.S., and in no shortage of other jurisdictions, as well. 

With trademark infringement claims almost certainly off the table, Gucci family likely also could not make viable right of publicity-centric claims. As TFL previously reported, while the right of publicity provides individuals with a cause of action in connection with the unauthorized exploitation of their names, likenesses, and recognizable personality traits, that exploitation must take place in a commercial capacity. That would be an issue for any unamused Gucci spawn, as unlike the unauthorized use of their likenesses on a product, for instance, which could give rise to a successful right of publicity action, movies are an expressive medium, and it is well established that “the public interest in preserving such expression outweighs the private interests of individuals in the commercial value of their publicity rights.”

In it unclear if they would have any luck before courts in Italy on right of publicity grounds, as depicted family members Aldo andRodolfo Gucci are dead, and “whether the right of publicity is descendible under Italian law has been the subject of much debate,” according to Lowenstein attorney Matthew Savare. Scholars have expressed mixed views about whether the right of publicity remains in force after an individual’s death, and therefore, becomes an actionable asset for successors. They are traditionally split into three camps: ones that believe that under Italian law, the right dies with the individual at issue; those that view it as surviving a person’s death and then lasts for 50 years; and those that believe that the right extends beyond a person’s death by only if it has been commercially exploited during the individual’s lifetime.

Having said that, the Gucci family may not be entirely without recourse if the film does, in fact, include “inaccuracies” that result of a defamatory portrayal of individual members, as Ms. Gucci says the book does. The use of defamation claims in the context of film is not without existing examples. 

Other Film-Prompted Suits

According to Weintraub Tobin attorney Scott Hervey, “There has been a significant number of libel claims that are all based on an unfavorable portrayal of a real person in a work of fiction – television program or motion picture – that is based on real life events.” Although, they have not necessarily been fruitful for the filing parties. Hervey points to the case that Panamanian law firm Mossack Fonseca & Co. and partners Jürgen Mossack and Ramón Fonseca filed against Netflix based on their portrayal in the 2019 Steven Soderbergh-directed, Netflix-released film, “The Laundromat.” The plaintiffs claimed in their October 2019 trademark infringement and libel complaint that Netflix “defames and portrays [them] as ruthless uncaring lawyers who are involved in money laundering, tax evasion, bribery and/or other criminal conduct,” and dilutes the firm’s trademark in the process by using the law firm’s logo in the Panama Papers movie without authorization.

Siding with Netflix in December 2020, a California federal court tossed out the plaintiffs’ libel claims on the basis that “no reasonable viewer of the film would interpret [it] as conveying ‘assertions of objective fact,’ particularly given the statement at the beginning of the Film ‘Based on Actual Secrets’ which sets the stage and the disclaimer at the end of the film that states the film is fictionalized for dramatization and is not intended to reflect any actual person or history.” And even if “a reasonable viewer would view the film as statements of actual fact,” Judge Consuelo Marshall of the U.S. District Court for the Central District of California held that the movie “does not portray Plaintiffs as directly involved in the murders, drug cartels, and other criminal activity committed by their clients as referenced in the complaint.” 

Not a total win for Netflix, the court order left the plaintiffs’ trademark dilution and false advertising claims on the table, as they fell outside of the scope of Netflix’s anti-SLAPP motion. (The viability of trademark claims would, of course, not help the Gucci family members, as the Gucci brand is the owner of such rights.)

In a separate but similar suit, Andrew Greene – who was the head of the corporate finance department at Jordan Belfort’s Stratton Oakmont between 1993 and 1996 – filed suit against Paramount Pictures and the producers of the Wolf of Wall Street film in 2014 for allegedly including a character based on him – Nicky Koskoff – and defaming him in the process by having that character engage in “unsavory and illegal behavior.” 

Paramount prevailed in the case, with a New York federal court dismissing the $25 million-plus lawsuit on summary judgment. In her December 2018 order, Judge Joanna Seybert of the U.S. District Court of the Eastern District of New York held that “based on the fictionalized nature of the movie; the undisputed facts that the Koskoff character is a composite of three people and has a different name, nickname, employment history, personal history, and criminal history than [Greene]; [and] the movie’s disclaimer,” among other things, Greene “cannot carry his burden of demonstrating actual malice with clear and convincing evidence,” and thus, “his libel claim fails.”

The family v. film-maker feud is not the first of its kind in fashion. The current spat, which as of now is contained to a venue of the media, is not unlike the one that erupted when Tom Rob Smith and Ryan Murphy  brought the story of Gianni Versace’s murder to FX. In the case, the fellow Italian fashion family distanced themselves from the small-screen depiction and formally asserted that it had “neither authorized nor had any involvement whatsoever in” the series. And beyond that, the late Pierre Berge took issue with films about partner Yves Saint Laurent, albeit Berge’s protest led to at least one lawsuit. 

As for the Black Widow, herself, as Patrizia Reggiani was coined by the Italian media during the trial over her role in a murder-for-hire plot aimed at her ex-husband, Maurizio Gucci, the former member of the fashion and leather goods-famed Gucci family says that she has no plans of filing suit, and that as of now, the family does not either. 

Condé Nast is slamming the right of publicity lawsuit that nearly 50 models filed against it and Moda Operandi last fall for allegedly using photos of them walking in the Spring/Summer 2020 runway shows in order to sell runway garments and accessories without their authorization. On the heels of the high fashion retailer and the magazine publisher pushing back against the models’ claims in respective motions to dismiss, and a New York federal court stripping down the case, Condé Nast is trying to get the rest of the case – including the plaintiffs’ right of publicity and unjust enrichment claims – tossed out. 

In the answer that it filed on November 13, Condé Nast argues – by way of seventeen affirmative defenses – that the model plaintiffs’ remaining causes of action against it should be dismissed. Among other things, Condé Nast argues that the models’ claims are barred by the First Amendment, preempted by federal copyright law, and are otherwise not viable because it did not use their images or likenesses “for advertising purposes, or for the purpose of trade, or for any other commercial purpose.” Instead, the New York-headquartered media company claims that it used the runway photos “in connection with matters of public interest, public concern, and/or [matters that are] newsworthy,” which amount to uses that are permitted by the law.  

Beyond the affirmative defenses, Condé Nast sets out a single counterclaim, alleging that on September 4, 2020, the model plaintiffs commenced this lawsuit, despite their “lack of any substantial basis in law or fact,” and in furtherance of an attempt to “inhibit [its] exercise of the constitutional right of free speech in connection with an issue of public interest, namely fashion reporting.” 

The primary issue, according to the Vogue publisher, is the editorial nature of its runway coverage. By way of its Runway vertical, Condé Nast says that it provides “comprehensive fashion runway editorial coverage,” including an “archive repository [of imagery and reviews] for the fashion industry and interested readers.” Such editorial – versus commercial – use of runway imagery stands in the way of the models’ ability to make plausible right of publicity claims, per Condé, as “it is well-established that … recovery under New York’s right of publicity statute is strictly prohibited unless a person’s likeness is used for trade or advertising purposes.”

Citing the court’s September memo and order, in which it dismissed all of the models’ false endorsement claims against CondéNast, more than a dozen of the models’ false endorsement claims against Moda Operandi, and most of the models’ right of publicity claims against both defendants, Condé Nast states that Judge Colleen McMahon already found that the runway coverage “is a work of fashion journalism,” which is not changed by the fact that “like every fashion magazine, [it] happens to contain advertisements.” 

(Condé notes that the models do not take issue with the placement of banner ads that appear “in proximity to their likenesses” in the runway section of its site, such as those from “Otezla, Burberry, Hourglass cosmetics, and Hermès,” and instead, focus solely on “the inclusion of very small hyperlinked boxes with the words, ‘SHOP THIS LOOK,’ that if clicked, led visitors to Moda’s website.”)

By bringing this case against it “for the purpose of inhibiting and interfering with [its] exercise of free speech rights regarding an issue of public concern,” namely, the seasonal runway shows, and thereby, “forcing [it] to defend itself against litigation arising from the exercise of First Amendment-protected activity,” Condé Nast argues that the models are actually in the wrong.  

“This is a classic SLAPP suit,” according to Condé Nast, which claims that the models “commenced and continued their meritless right of publicity claims against [it] with full knowledge that their claims lack any substantial basis in law or fact.” Even after Condé Nast counsel “repeatedly made clear to counsel for the [models] that their right of publicity claims have no basis,” the publisher contends that they, nonetheless, “persisted in filing and continuing this action, causing [it] to expend significant costs and fees to defend its First Amendment-protected rights.” 

“This kind of attack on the exercise of free speech” is precisely the type that is prohibited by anti-SLAPP statutes, which apply to lawsuits that “target ‘[a]ny communication in a place open to the public or a public forum in connection with an issue of public interest’ or ‘any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest’ with the term ‘public interest’ defined ‘broadly’ to ‘mean any subject other than a purely private matter.’” 

The case at hand falls neatly within that framework, per Condé Nast, as “Vogue is a public forum” and fashion news is a matter of public interest. Specifically, it asserts that the right of publicity claims that the models set out in their complaint are without legal basis because “New York courts recognize that there is a well-established ‘newsworthiness’ exception to liability under the right of publicity statute, and that exception has been held to apply to fashion reporting like the Runway Editorial at issue here.” 

By commencing a lawsuit that is aimed at “inhibit[ing] the exercise of free speech and harass[ing] a publisher by forcing [it] to spend money to defend against [such a] baseless suit,” Condé Nast argues that the models have violated New York’s anti-SLAPP statute, and unless they are “held accountable for their tortious activity, the purpose of the Anti-SLAPP Law will be frustrated and it will be open season on New York publishers forced to defend against lawsuits that inhibit their exercise of Constitutionally-protected free speech rights.” As such, in addition to tossing out the plaintiffs’ claims, Condé Nast is seeking damages, including its attorneys’ fees, as well as compensatory and punitive damages.

The case is Champion et al., v. Moda Operandi, Advance Publications d/b/a/ Conde Nast, 1:20-cv-07255 (SDNY).

The Sean John brand may be inextricably linked to Sean “Diddy” Combs, but that does not mean that the company behind it can use the likeness of its famous founder without his authorization. That is what Combs asserts in the complaint that he filed against GBG Sean John LLC, GBG USA Inc., Missguided Limited, and Missguided USA (collectively, the “defendants”), accusing the companies of “using and exploiting [his] name, image, likeness, and persona … without his approval, permission, or consent,” and thereby, causing consumers to “mistakenly believe” that he is affiliated with an apparel collection that they launched. 

According to the complaint that he filed in a New York federal court on February 4, Combs claims that in the midst of “achiev[ing] a level of success, recognition, and fame in the music industry that few ever attain,” he expanded his career beyond the music industry to fashion, launching the Sean John clothing brand in 1998. Under his watch, the brand “rose to critical and commercial success as a premier lifestyle brand in the U.S. and around the world” before it was sold to brand management company Global Brands Group (“BGB”) in November 2016. (At the time of the deal, it was reported that Combs would “retain a minority interest –  believed to be around 20 percent – and [would] continue to be involved in the marketing and promotion of the Sean John brand.”)

Things seemingly went south last year, according to the complaint, when GBG entered into a license agreement with UK-based fast fashion brand Missguided “for the creation and distribution of [a] collection bearing the Sean John trademark.” Combs asserts that the license agreement was entered into without his “knowledge, approval, or consent,” and more than that, he argues that he never granted GBG or Missguided “the right to use his name, image, likeness, or persona in conjunction with the GBG collection,” nor has he ever “endorsed the GBG collection, which is branded as ‘Sean John x Missguided.’”

Nonetheless, “before the GBG collection launched on September 29, 2020, it received significant media attention,” with articles containing quotes attributed to Combs in which the rapper and entrepreneur appeared to be endorsing or otherwise connected with the collaboration. For instance, the complaint points to a quote published by 356retail.co.uk, in which Combs allegedly states, among other things, “Over the years, women have supported [Sean John], worn our iconic velour tracksuits and have been asking for a collection, so here it is!” 

The problem: “Mr. Combs never uttered the above statement attributed to him.” As such, Combs alleges that the defendants “jointly authored and approved the quote falsely attributed to [him] and never provided the statement to [him] for his review and/or approval,” which he says that they did not do because “they knew, or should have known, he would have refused” to endorse the collaboration. Combs claims that because his “name, image, likeness, and persona are an extremely valuable asset, he zealously guards his publicity rights and carefully evaluates whether, and to what extent, those rights may be exploited by others.” 

In addition to allegedly falsified media quotes, Combs claims that the marketing messages on the Sean John and Missguided websites include erroneous information about his connection with GBG and the Missguided collaboration given that GBG “was not founded by Mr. Combs, and he is not responsible for or involved in the ‘Sean John x Missguided collaboration.’” And all the while, Combs also takes issue with a 40-second advertisement for the collaboration that “promotes the apparel using … Mr. Combs’s name, image, likeness, and persona.” 

With the foregoing in mind, Combs states that he “does not challenge the defendants’ right to use the Sean John trademark” in connection with the Missguided collab since GBG is the owner of trademark rights in the “Sean John” name as a result of its acquisition of a majority stake in the Sean John brand in 2016. Instead, Combs is calling foul on GBG and Missguided’s “decision to leverage a fabricated quote they created and then falsely attributed to Mr. Combs, and to use [his] name and other monikers to create the false and misleading impression that [he] is the decision-maker behind the designs and creation of the GBG collection.” 

According to Combs, the defendants’ unauthorized use of his name and likeness, including “false or misleading representations of fact,” come in furtherance of their quest “to promote and sell the items in the GBG collection because they understand that associating it with Mr. Combs will significantly increase sales and profits.” 

In light of the defendants’ alleged failure to “take immediate and effective measures to correct the misperception and belief by the public that Mr. Combs endorses, sponsors, approves of, and is affiliated with the GBG collection,” Combs sets forth claims of common law right of publicity, and statutory right of publicity” under California state law. He is seeking monetary damages, and injunctive relief barring the defendants from “using, exploiting, or displaying [his] name, image, likeness, voice, or persona in any way … now or in the future, without [his] written consent or permission.” 

Are Trademark Rights Enough?

Interestingly, the case – which is not the first of its kind to be filed against Missguided (the brand was sued on right of publicity grounds by Kim Kardashian in 2019) – sheds light on one of the many issues that individuals could face in connection with labels they founded after a sale of the company has occurred. Combs’ claim that GBG and Missguided have relied on his persona in marketing the collaboration to help boost sales seems to suggest that: 1) consumers associate the Sean John brand with Combs, and that connection drives demand for the company, and 2) in such a situation, the most immediate trademark rights amassed in furtherance of a brand acquisition might not be the end-all, be-all when there is a famous founder or affiliated figure at play. 

In other words, it appears that while GBG maintains exclusive rights in the Sean John brand and affiliated trademarks, and almost certainly can craft marketing messages about the company’s origin story (including its famous founder) as long as they do not border on suggesting that an affiliation exists, GBG appears to be left wanting, namely for the ability to legally claim closer, endorsement-esque ties to its ultra-famous founder. This issue – and the delicate balance that it calls for – is likely to continue to arise as an increasing number of celebrities launch brands either under their own names and/or in which they act as the primary spokesperson.  

“You have to make something damn good and differentiated,” Michael Yanover, the head of business development at Creative Artists Agency, told the New York Times late last year in connection with the boom in celebrity beauty brands. Oftentimes, at least part of that differentiation centers, of course, on the celebrity at play, which inevitably boasts a huge base of fans that are eager to buy into things that that particular individual endorses. 

Tapping into such demand via their own ventures, whether it be apparel companies or beauty brands, “has the potentially huge prize down the road of an I.P.O. or a deal like [Kylie] Jenner’s,” Courtney Rubin wrote for the Times in November, referring to the $600 million that cosmetics titan Coty, Inc. paid for a 51 percent stake in the reality mega-star’s company. (Coty has since followed up the Kylie Cosmetics deal with a purchase of 20 percent of Kim Kardashian’s KKW brand in a deal that values the 4-year old company at $1 billion). The Wall Street Journal noted around that same time that Kylie Cosmetics is “part of a wave of fledgling cosmetics lines capitalizing on” – and thus, depending on – “celebrity founders and social media-driven marketing.” 

Given that these celeb-affiliated companies derive significant value from their famous founders operating in a central role (making them a critical marketing asset of the company), questions – and potential issues – abound if/when such individuals opt to ultimately sell off the company that bears their name and/or is so closely linked to their likeness, and move on to new ventures, as Combs appears to have done here. While the transfer of trademark rights in connection with the sale of a celebrity-founded and fronted label, and the subsequent operation of such a brand is not without a road map (it can a bumpy one if the company is an eponymous one), such a deal also requires an examination of right of publicity issues, namely, the right to use an individual’s name, image, and likeness in commercial settings in connection with the brand even after they have parted ways. 

This is likely to continue to prove a critical consideration as celebrities rush to leverage their fame by way of consumer goods brands, with the Sean John case potentially serving as a mere jumping off point for future squabbles. 

*The case is Sean Combs v. GBG Sean John LLC, et al., 1:21-cv-00996 (SDNY).

In September, 44 models sued Advance Publications d/b/a Condé Nast and Moda Operandi. According to the models’ complaint, which was filed in a New York federal court, Vogue’s parent company and the high fashion pre-sale site were engaging in a “pervasive” scheme to use images of them – from photos and videos of them walking in Fashion Week runway shows to images of them backstage at such shows –  without their authorization on Vogue’s website in order “to steer traffic to [advertiser] Moda Operandi’s website for its sole economic gain.” 

The Next Management-represented models alleged that they are “routinely hired by companies for their modeling services to sell products,” and as a result, when Condé Nast and Moda Operandi include links that enable consumers to “Shop This Look” next to images of them on the runway, “the general public is likely to be, and has been, deceived and/or confused into thinking that the plaintiffs have provided their respective sponsorship or approval to the services offered by Moda Operandi and Vogue.” 

In addition to setting out claims of false endorsement, in which they accuse Condé and Moda of using images of them in a way that consumers are likely to be misled about that person’s sponsorship or approval of a product or service, the models also claim that Vogue and Moda Operandi have violated New York Civil Rights Law sections 50 and 51, which protect against the unauthorized use of another’s likeness for a commercial purpose. 

Now, both Condé Nast and Moda Operandi are urging the court to toss out the suit on the basis that the models – including Anok Yai, Grace Elizabeth, Grace Hartzel, Linsiey Montero, Anna Cleveland, and Binx Walton, among others – have failed to sufficiently make their case. 

Condé’s Claims

Setting the stage in its January 15 motion to dismiss, Condé Nast states that the matter at hand centers on its coverage of the Spring/Summer 2020 Ready-to-Wear collections and in particular, “on the small red box in the lower corner of some illustrative runway photos” that contains “the words ‘Shop This Look’” and that links to Moda Operandi’s e-commerce site. According to Condé, by publishing “photographs of [the professional model plaintiffs] doing their jobs (i.e., modeling on the runways at the featured fashion shows)” alongside the little “Shop This Look” boxes, the plaintiffs argue that Vogue’s “editorial” content is “transmuted into commercial speech,” and as a result, runs afoul of the Lanham Act and New York’s right of publicity statute. 

Such a premise is “erroneous,” Condé argues, as courts have held that “close proximity” between editorial content (such as runway show reviews and corresponding imagery) and sponsored content “does not overcome the well-established First Amendment protection afforded to news and commentary under … the Lanham Act and the New York Civil Rights Law.” Here, First Amendment protections prevail, as the “use of a plaintiff’s name or image in an expressive work (including news and commentary) is protected … unless it (1) ‘has no artistic relevance to the underlying work whatsoever’ or (2) ‘explicitly misleads as to the source of the content of the work.” 

The models do not plead either element, the media giant argues because “as models at the actual fashion shows featured in Vogue Runway’s editorial coverage, [their] images were obviously relevant to that coverage.” And since the models’ images are relevant to Vogue’s runway show features, its use of the images of them “is unprotected only if [such use] ‘explicitly misleads [consumers].’” The plaintiffs fail on that prong, as well, Condé claims, as they “do not (and cannot) allege that Vogue made any explicit statement indicating that [the models] endorsed Moda or its services,” since it does not mention Moda Operandi’s name at all in connection with the “Shop This Look” functionality.

At the same time, the models “do not (and cannot) allege that Vogue did anything whatsoever to present them in a false light,” or to give rise to a likelihood that consumers would be misled or confused about whether the models are – or in this case, are not – endorsing Moda and/or its products. 

In fact, Condé contends that “‘no reasonable trier of fact could reach’ the conclusion that images of models walking the runways at designer fashion shows – included to illustrate Vogue’s commentary on the new designs – somehow reflects that each model endorses adjacent advertising.” (Condé notes that the models do not claim that it is using their image to imply an endorsement of other ads, such as ones featuring Levi’s jeans). To the contrary, “Plaintiffs are professional models, paid to walk the runway at fashion  shows, where the whole point is to be photographed wearing the designers’ works, and it is understood by all that those photographs would appear in editorial publications alongside advertisements.” 

“None of the [models] could plausibly argue that there is a false association between them and the designers’ fashion they were modeling – they indisputably were hired to display those fashions,” per Condé, and the “incidental commercial aspects of their appearances in the shows, as well as in the pages of Vogue, are a known and obvious by-product of what they do.” In other words, the models are trying to – but cannot – have it both ways: they cannot engage in their profession, while also seeking to limit the use of photos that depict them engaging in that profession. 

(Condé also notes that “fashion journalism (like all journalism) frequently includes images of people alongside advertisements for products [and] no one could reasonably suggest that every image of a personal in the editorial section of a newspaper, magazine or TV report is a statement about the person’s endorsement of all products advertised alongside the report.”)

As such, the model plaintiffs’ false endorsement and right of publicity claims fail, per Condé. 

Moda’s Motion to Dismiss

Meanwhile, in a separate but related motion to dismiss, Moda Operandi similarly asserts that the plaintiff models fall short in making their false endorsement and right of publicity claims. According to Moda, the models do not “plausibly allege that an appreciable number of ordinarily prudent consumers, looking for or buying designer apparel on Moda’s e-commerce website, are likely to mistakenly believe that the plaintiffs endorsed or sponsored, or are associated with Moda or its goods.” 

Why is that? Well, for one thing, Moda asserts that its site depicts “hundreds of models in the same manner: wearing the apparel of Moda’s designers, [n]one of [whom] are identified by name or other biographical information, and, most of the time, their faces are obscured.” What consumer “would believe [the models endorsed Moda] when their names are not mentioned?,” the company asks in its filing. “What company would seek to create an impression of endorsement by a model and then obscure her face, even some of the time?” 

Beyond that, Moda takes issue with the plaintiff models’ claim that “Moda’s typical consumers will understand the use of her image to imply source, sponsorship, or endorsement of Moda or its products,” arguing that “consumers who shop on e-commerce sites are accustomed to seeing images that show people modeling the clothing and other items offered for sale.” The photos at issue here “are no different,” Moda argues, as they are “merely anonymous, generic photos that allow consumers a pre-purchase view of how the high-fashion apparel looks when worn on the runway or at a trunkshow.” 

In short: consumers are not going to be confused into believing that the models are endorsing or associated with Moda Operandi and/or its e-commerce website.

Additionally, in regards to the models’ right of publicity claim, both Condé Nast and Moda Operandi argue that “the majority of the forty-three [models’ claims] under Sections 50 and 51 of New York’s Civil Rights Law must be dismissed because these [models] are not domiciled in New York and therefore, do not have right of publicity claims under the New York statute.” To be exact, 17 of the models allege that they are New York residents, while the remaining 26 reside outside of New York. 

With the foregoing in mind, Moda Operandi and Condé assert that the models’ claims under the Lanham Act “are not plausible and should be dismissed,” and the claims by the twenty-six models not domiciled in the State of New York should be dismissed. Still yet, they argue that “the Court also should decline to exercise supplemental jurisdiction over any remaining right of publicity claims and dismiss the Complaint in its entirety.” 

*The case is Champion et al., v. Moda Operandi, Advance Publications d/b/a/ Conde Nast, 1:20-cv-07255 (SDNY). 

Selena Gomez is taking on a mobile game developer for allegedly featuring a character that looks just like her in its “bug-riddled” styling game. In a newly-filed lawsuit, counsel for Gomez claims that given the singer’s widespread fame, her enormous social media following, and her role as a “a widely-recognized style icon,” Gomez makes an ideal figure to appear in such a game and to endorse it. The problem is, Forgame Holdings Limited allegedly never sought out the mega-star’s authorization before featuring her in its game. 

According to Gomez’s complaint, which was filed in a California state court on Tuesday, Forgame US Corporation (“Forgame”) and a handful of related U.S. and Chinese-headquartered defendants created and developed “Clothes Forever Styling Game,” a mobile-specific game that enables users to “live out all your fantasies of … designing your very own fashion brand, dressing celebrities, [and] interacting with the most beautiful models and celebrities; the likes of Kardashian, Gigi, Beyoncé, Taylor, and more will be dropping by and asking for YOUR fashion advice!” 

Gomez asserts that “screenshots of the game” posted … on the Apple App Store website demonstrate that the defendants have created, developed, marketed, promoted, sold, and exploited their games and gaming activities using the images and likenesses of prominent celebrities, including [herself], Rihanna, Kendall Jenner, Gigi Hadid, Taylor Swift, and Kim Kardashian.” In terms of the use of her likeness, in particular, Gomez’s counsel points to an image that appears on the App Store website, which “blatantly rips off a popular image of Gomez taken for the fashion publication Flare.” Such use of Gomez’s image and likeness “in connection with the exploitation of the game creates the false impression that she has endorsed the game or has something to do with the game, and undoubtedly is intended to attract consumers to make use of the game,” Gomez asserts. 

Not the result of a formal partnership between Gomez and the defendants, the singer claims that the of her image “came as a surprise,” as the defendants “neither sought nor secured permission from Gomez to use her image or likeness in connection with the game or the advertising or marketing thereof,” thereby, engaging in “reprehensible and constitute gross violations”of California’s right of publicity law, a state-specific legal doctrine developed to give individuals the ability to prevent others from commercially exploiting their names, images, likenesses, etc. without permission. 

Gomez claims that not only did the defendants fail to seek or receive her authorization to use “any of her publicity rights” in connection with the game, itself, or their efforts to promote the game, even if they sought to license such rights, she “would [not] have consented to such use for the game, which “is currently rated a measly 3.5 stars out of 5 by users on the Apple App Store website,” and “apparently relies on the unsavory practice of luring its users to make in-game purchases in amounts as much as $99.99 to fund imaginary spending in the game and unlock features.”

Beyond the apparent issues with the game and the poor reviews that come with it, Gomez states that her “ability to exercise control over any products bearing her image or likeness is critical to the success of the personal, professional, and philanthropic opportunities she pursues,” and with that in mind, she takes “considerable care to ensure any endorsements and business opportunities she pursues meet her exacting standards and serve to advance her reputation and her career and philanthropic goals.” Endorsing this game does not fit that bill. 

With the foregoing in mind, Gomez claims that the defendants have been “unjustly enriched by their ill-gotten gains or profits realized from their infringement of and conspiracy to violate Gomez’s law right of publicity. As a result, she is seeking injunctive relief to bar the defendants from further misappropriating her likeness, and has also told the court that she intends to seek an array of damages in a sum to be established at trial. 

Hardly the first suit in which a celeb has called foul on right of publicity grounds in connection with a video game, Lindsay Lohan, for instance, filed suit against Take-Two Interactive Software Inc. in a New York state court in 2013, alleging that its use of characters that allegedly run afoul of her right of publicity in its “Grand Theft Auto V” game. Lohan spent 5 years facing off against the game developer, before ultimately being handed a loss in March 2018, when a 6-judge panel for the state’s court of appeals unanimously held that Take-Two Interactive’s “artistic renderings are indistinct, satirical representations of the style, look and persona of a modern, beach-going young woman… that reasonably identifiable as [Lohan].” 

The court did agree with Lohan on at least one point: that a computer game character could constitute a “portrait,” holding that “in view of the proliferation of information technology and digital communication, we conclude that a graphical representation in a video game or like media may constitute a ‘portrait’ within the meaning of the Civil Rights Law,” and thereby, fall within the realm of a protectable “likeness.” Nonetheless, it ultimately found that in the case at hand, the likeness at issue consisted of “ambiguous representations [that] are nothing more than cultural comment that is not recognizable as [Lohan],” and sided with the video game-maker.

*The case is Selena Gomez v. Forgame Holdings Limited, et al, 20STCV14383 (Cal.Sup.).