Woody Allen Continues to Fight the Good Fight

Poor Woody Allen. It seems that over the years everyone has wanted a piece of him without his consent. Years ago, Allen won a lawsuit against a no-name video store who ran a print add with a Wood Allen look-alike. The man was staring sheepishly at the camera with that signature grin, hand on his chin, movies such as Annie Hall situated in front of him. Even though it wasn't actually Allen, the court ruled that the video store's ad was designed to trick the public into thinking Allen endorsed their business.

The most recent case revolving around Allen's rights of publicity involves American Apparel, a cutting-edge clothing company based in LA. In one of their billboard ads, they took a shot from Annie Hall, in which Allen was dressed up as a Hasidic Jew, without Allen's permission. The case was settled today for a cool $5 mil - dangerously close to it's court date (tomorrow), in which Allen was going for $10 MIL. There's a WSJ article about the situation here.

Publicity cases always present interesting issues for both the public and for attorneys. For example, one must be famous "enough" to invoke the rights, because you have to prove that the alleged infringer was making money off of using your image. Unfortunately, the law doesn't believe regular Joes like you and I can actually motivate consumers to buy. I'm sure this concept of publicity rights is confusing to the public, as it is confusing to PR firms, marketing firms, and lawyers alike. When can I use an image without asking?

The broad answer to this questions is: NEVER. If you're a photographer, you always get your models to sign a release. If you, consumer or business, want to use the photo, you need to clear it with the copyright owner - in this case, the photographer. However, if the photographer didn't get consent from the model, you're working with a whole new ball of wax (especially if the person is famous "enough" to invoke publicity rights).

The situation with Allen is also unique as it may have been dependent on his contract with the production company that made Annie Hall. Now, since it was his movie, there may not have been a contract involved at all. And even if there was, most production studios only get the rights to use their actors' likenesses in connection with the promotion of the film. Since American Apparel wasn't promoting the movie, it's outside of that realm and squarely within Allen's personal publicity rights.

It's definitely a nuanced area of entertainment law, but one that should not be taken lightly. It's fairly easy to seek licensing rights if you have an attorney on your side that is familiar with the process and negotiations. Believe me, the upfront cost pales in comparison to the back end cost of litigation (not including your company's name being dragged through the mud, etc).