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.
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