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USE MY FACE? NO THANK U, NEXT.

11 December 2019

Did you know that in Australia there is no recognised right to your name or likeness for commercial purposes? This means that if someone decided to exploit your image or name without your consent, while you may be able to rely on defamation or passing off laws, your rights and remedies at law are ultimately limited.

A classic example of this was the 1988 case of Honey, G. v Australian Airlines Ltd & Anor,  in which Gary Honey was unsuccessful in a claim against Australian Airlines whereby the airline used a photo of Honey on a poster without his consent. Here the court held that the Airline was not associating Honey with the company, but rather was meaning to infer the theme of 'excellence'. As the court held that the airline was not making a false representation of association or endorsement, and the content was not defamatory, Gary was not entitled to any damages, despite the Airline using his image without consent for the benefit of their business.

This is contrasted to the United States of America, where many states enforce a right to publicity. In California there is both common law and statutory law which protects an individual's name and image - §3344 of the California Civil Code protects a person's name, voice, signature, photograph and likeness. 

An exciting case which was filed only last week in the California District Court sees internationally renowned pop artist Ariana Grande seeking damages in excess of 10-million-dollars against Forever 21 Inc and Riley Rose LLC for (in addition to other claims), violating her right of publicity. 

Grande alleges that the clothing giant Forever 21 - hired a model who looked deceptively similar to Grande in an attempt to mislead customers into believing that the pop artist endorsed their products, despite Grande recently turning down an endorsement deal with the company. Further, Forever 21 styled the model to resemble Grande in her 7-rings music video, and used her lyrics in their Instagram captions.

In determining whether there has been a breach of the statutory right under the California Civil Code, the courts ordinarily impose a three-step test:

1. Did the defendant knowingly and intentionally use the plaintiff's identity?
2. Was the use for advertising?
3. Was there a direct connection between the commercial purpose and the use?
The Common law test is relatively similar but further imposes an additional element of 'resulting injury'.

This case will be an interesting one to follow. Forever 21 has failed to comment or respond to the allegations and it appears that the pop singer has a strong case particularly due to their use of identical or similar clothing and utilising her song lyrics which is may be deemed to be copyright infringement. On the face of it, it appears that Forever 21 have strategically curated their content so as to bare some similarity/ likeliness to the pop artist which may be sufficient to constitute a violation of the right to publicity, dependent on the standard imposed by the courts. On the other hand, Forever 21 may have a public policy defence in that a company should not be restricted on who they can employ simply because they look similar to another person. From the evidence currently presented, it would be difficult to prove in this case that Forever 21 did not intentionally style the pictures to look like the Pop singer.

It is interesting to note that if this case were to have been filed in Australia, in addition to potential copyright and trade mark infringement, the singer would likely have a claim in passing off and misleading and deceptive conduct, provided that she is able to prove damage or likely outcome of damage. As stated above, however, in Australia no right to publicity currently exists.  That said, if you want to use someone's face in your advertisements, don't just take the view of "I see it, I want it, I got it" because Australian Consumer Law and Passing Off protects people's faces. Thank you, next.

 

Honey, G. v. Australian Airlines Ltd & Anor [1989] FCA 234.
  CIV CA CIVIL §3344.
  Ariana Grande Files $10 Million Lawsuit Against Forever 21 For Using Look Alike Model in Ad Campaign, Forbes (3 September 2019)  https://www.forbes.com/sites/rachelsandler/2019/09/03/ariana-grande-files-10-million-lawsuit-against-forever-21-for-using-look-alike-model-in-ad-campaign/?utm_source=FBPAGE&utm_medium=social&utm_content=2611553625&utm_campaign=sprinklrForbesMainFB#7e47c17b5772.
  California Right of Publicity Law, Digital Media Law Project (Accessed 8 September 2019) http://www.dmlp.org/legal-guide/california-right-publicity-law


Molly Flynn

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