Right of Publicity – Kim Kardashian accuses Old Navy of stealing her persona

The LT Pacific Law Group blog knows what its readers want, so we have to report on Kim Kardashian’s recently-filed lawsuit against Old Navy (click here for a pdf copy of the lawsuit).

Earlier this year, Old Navy released a commercial featuring a Kim Kardashian-lookalike.  Kardashian sued Old Navy and its parent company, The Gap, for breach of her right of publicity.  The claimed damage is taking advantage of Kardashian’s fame, which has resulted in a hit TV show and many endorsement deals (a cynical person would say Kardashian’s motivation could have more to do with the fact the Kardashian-lookalike is dating Kardashian’s ex-boyfriend, football player Reggie Bush, a less cynical person would say Kardashian’s simply maintaining her right to endorse cost-conscious retailers besides Old Navy).

California recognizes a right of publicity of a person’s identity, name or likeness from the unauthorized commercial use of such by another.  However, a key limitation on this right is if the accused use is protected by the First Amendment.  The First Amendment protects uses such as parodies or uses that have “transformative elements” (this gets complicated but it basically means the more a use adds something new or different to just using the subject’s literal persona, the more likely the use will have First Amendment protection).

The merits of Kardashian’s case will depend on whether Old Navy can successfully argue that the commercial was just a parody of Kardashian or a Kardashian-like character and that viewers reasonably could not believe that the real Kim Kardashian was endorsing Old Navy.

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