Daily Dicta: O'Melveny's Petrocelli Strikes Again, Repping Ariana Grande in Suit Against Forever 21
Marketing peril aside, Forever 21 may also be on shaky footing legally.
September 04, 2019 at 12:38 PM
6 minute read
Is it just me, or does Daniel Petrocelli get more than his share of fun cases?
Whether the O'Melveny & Myers partner is representing boxer Manny Pacquiao in a suit by disgruntled sports fans or shutting down a screenwriter who claimed Disney stole his idea for the movie "Zootopia" (not to mention that little antitrust matter with AT&T and Time Warner), Petrocelli has a caseload most litigators would envy.
His latest: Representing pop star Ariana Grande in a suit against clothing chain Forever 21.
On Sept. 2, Petrocelli, who declined comment, sued on Grande's behalf in U.S. District Court for the Central District of California. The suit claims that Forever 21 and Riley Rose, the beauty company started by the daughters of Forever 21's founders, stole the singer's "name, likeness, and other intellectual property to promote their brands for free."
Rather than pony up the necessary fortune to get Grande's official endorsement, the clothing chain allegedly hired a look-alike model instead. In social media posts, the model mimicked Grande's hairstyle and wore clothes that look a lot like ones Grande has been photographed wearing, according to the complaint. Forever 21 also allegedly mixed in photos of Grande herself and used audio from her song "7 Rings," copyrighted images from her videos and captions containing her lyrics.
The unauthorized uses are "blatant and willful violations of her statutory and common law rights of publicity, and constitute infringement of plaintiffs' copyrights and trademarks under the Copyright Act and Lanham Act, respectively," Petrocelli wrote.
According to the complaint, Forever 21 earlier this year sought Grande's endorsement for its products—"which she explicitly declined due to Forever 21's unwillingness to pay the fair market value for a celebrity of Ms. Grande's stature," per the complaint.
Grande has 160 million Instagram followers—more than any other woman on the planet—plus 65.4 million followers on Twitter (Donald Trump has 63.9 million). Her music and videos have amassed over 30 billion streams on platforms such as YouTube, Spotify, and Apple Music.
The market value for a single Instagram post from her is "well into the six figures, and she commands in the mid-seven figures to over eight figures for longer-term endorsement deals," Petrocelli wrote.
According to my resident expert—my 17-year-old daughter—there is almost surely a high overlap between girls who are Ariana Grande fans and girls who shop at Forever 21, which currently touts items such as high-waist skinny jeans for $12.90, sequin halter jumpsuits for $21 and satin off-the-shoulder crop tops on sale for $13.41.
But if Forever 21 makes Ariana's legion of fans angry … Forever 21 should be very afraid. Per my daughter, her fandom would turn on anyone who wrongs their idol—and with a level of viciousness that only teenage girls can truly muster.
No wonder the company is being so careful in its public response.
In an email, a spokeswoman said, "Forever 21 does not comment on pending litigation as per company policy. That said, while we dispute the allegations, we are huge supporters of Ariana Grande and have worked with her licensing company over the past two years. We are hopeful that we will find a mutually agreeable resolution and can continue to work together in the future."
Marketing peril aside, Forever 21 may also be on shaky footing legally.
There's a long line of celebrities who have brought successful suits for right of publicity violations. Former Tonight Show host Johnny Carson, for example, went after Here's Johnny Portable Toilets ("The World's Foremost Commodian" wince).
"[A] celebrity has a protected pecuniary interest in the commercial exploitation of his identity," the U.S. Court of Appeals for the Sixth Circuit held in siding with Carson in 1983. "If the celebrity's identity is commercially exploited, there has been an invasion of his right whether or not his 'name or likeness' is used."
In a blog post, IP/entertainment law specialist Michael Hoisington of Higgs Fletcher Mack offered other examples of successful suits. "George Wendt and John Ratzenberger, Norm and Cliff on the television show 'Cheers,' sued for violation of their publicity rights when a company created robots that resembled them. So did Vanna White. The law offers broad protection in this area, especially to famous celebrities."
More recently, Brooke Shields this year sued cosmetics maker Charlotte Tilbury Beauty Inc. plus several retailers over an eyebrow pencil shade called the "Brooke S."
Last month, a California state court judge nixed her claim for punitive damages, ruling that it lacked sufficient specificity. But the judge allowed the rest of her claims to proceed and gave the actress leave to amend.
Also pending: a series of right of publicity suits against Epic Games brought by two rappers, an actor and a performer for allegedly copying their dance moves in the popular video game Fortnite.
"Can a movement, such as a dance, identify a given individual?" wrote Finnegan, Henderson, Farabow, Garrett & Dunner Nicholas Camillo in a blog post about the cases, which are pending in the Central District of California. "Can an individual's likeness be inherently tied to the dance moves that he or she allegedly created? Can a form of expressive communication—such as a GIF, meme, or emote—be specifically attributable to an individual?"
While those questions push the bounds of the right of publicity, it's hard for me to see how Forever 21 will defend against the straightforward allegations concerning its ad campaign–and do so without alienating millions of potential customers who worship Ariana Grande.
I predict a very expensive settlement is in their future–or if this report by Bloomberg is true, filing for bankruptcy.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllLitigators of the (Past) Week: Tackling a $4.7 Billion Verdict Post-Trial for the NFL in 'Sunday Ticket' Antitrust Litigation
Take-Two's Pete Welch on 'Getting the Best Results While Getting in the Way the Least'
Litigators of the Week: Kirkland Beats Videogame Copyright Claim From Lebron James' Tattoo Artist
Trending Stories
- 1'There is No Time to Waste': Matt Gaetz Withdraws From AG Nomination
- 2The Growing PFAS Morass: Why Insurance Should Cover These Products Liability Claims
- 3Dallas Jury Awards $98.65M in Botham Jean Killing by Dallas Officer
- 4In Talc Bankruptcy, Andy Birchfield Skipped His Deposition. Could He Face Sanctions?
- 5Pharmaceutical Patents: Benefits and Challenges
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250