Geekalegal- Right of Publicity & Copyright

I was recently in a discussion where we talked about Kim Kardashian suing Old Navy for using her image (in that the woman who was in the commercial had similar characteristics), thus misappropriating her 'likeness'. We all watched the ad and then debated if she really has a case against the company. Sure the actress in the ad looks similar to Kardashian, but frankly so do a lot of other young actresses and models. This actress actually is someone in her own right in Canada, so was there an attempt to use this actress to make it seem like it was Kardashian, or is it a generally thumbs up to the dark haired, slim, body type?

Some argued that it was a spoof on Kardashian. If that's the case, then a defense if fair use as it is a parody. Does Kardashian have that much of a following and recognition in the market that viewers of the ad immediately thought of her?

I'm not a tv watcher, when I have any free time I tend to read. I love tv but it is just a preference for no noise when possible. So I kind of missed the whole Kardashian phenomena. When I compared the two women side by side, I thought they had similar basic looks, but I didn't get the Kim Kardashian connection even after watching some of her. It wasn't like there were tattoos or oddly placed piercings that were copied, something specific as has been in other cases. Maybe there was something in the ad I'm just missing, but even the younger lawyers in the group were not seeing it.

How often have you seen something in a book that sounds familiar? Book covers that are look alikes of popular sellers. Characters that seem straight out of the movie you saw two weeks ago? You read a book and you think, wow I have heard or read that exact same phrase before. Deja vu, copying or just happenstance?

I remember when the phrase “Whatever” first hit our language. My initial exposure was in the movie Clueless. So if someone uses that phrase with a character that is a rich blond teen in Hollywood, is that infringement on the movie or is it common enough to be a common element such as star crossed lovers or a comedic sidekick?

So... does Kim Kardashian have a persona such that she can reserve that persona as uniquely her? Some of the more famous Rights of Publicity cases include characters such as Don Henly, Bette Midler, Vanna White).

Some editors have told me they don't want their authors reading other books in the same genre while writing, to make sure they don't subconsciously lift words, phrases, plots from those books. Access is an element in proving up infringement of copyrighted material. Yet copyright infringement can occur without intentionally plagiarizing (which is the subject of a future blog). George Harrison found that out when his song “My Sweet Lord” was found to infringe on “He's So Fine”. Even though he didn't intentionally use the earlier song, he'd had access to it and there was enough similarity to find infringement.

Makes this a difficult writing world, when we are bombarded by media everywhere. To be clear, there are always recurrent plot lines, characters, the archetypes are studied so much because they are exactly that- long standing types of personalities. How you express your ideas, tell your story, that is where the uniqueness comes in.

So we've gone from whether the Old Navy commercial misappropriates Kardashian's likeness enough to be a cause of action to a beginning talk about copyright infringement. I actually think it helps to look at the Kardashian claim to start thinking in our mind as we write to question whether our plots, characters, dialogues...are they mimicking something, trying to be a story that has been told in a very similar specific manner. When revising, and working with critique partners, make sure to be vocal if something sounds 'too much' like a book you've read or movie. It could be independent creation, and prior to the internet that was easier to prove up. Now, well, it is a lot harder to say you've been under the proverbial rock-- even when you have been!

Unless I get diverted with another topic, the next blog will be about infringement. Plagiarism is rampant and sad. I don't get it but it happens daily. As an author, it is probably one of the most frustrating things to happen. What is it, what can you do about it? Next time.