Downing v. Abercrombie & Fitch
265 F.3d 994 (2001)
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Rule of Law:
The unauthorized commercial use of an individual's name and likeness in an advertising catalog is not protected by the First Amendment even if it is placed near editorial content on a matter of public interest. Furthermore, a state law right of publicity claim, which protects a person's persona, is not preempted by the federal Copyright Act even when the likeness is captured in a copyrighted photograph.
Facts:
- George Downing and the other plaintiffs (Appellants) are renowned surfers, considered legends in the surfing community.
- In 1965, photographer LeRoy Grannis took a photograph of the Appellants at the Makaha International Surf Championship in Hawaii and later handwrote their names on it.
- Abercrombie & Fitch, a clothing retailer, developed a surfing theme for its Spring 1999 "Abercrombie and Fitch Quarterly," a subscription catalog that served as its primary advertising vehicle.
- An Abercrombie employee purchased the photograph of the Appellants from Grannis for $100.
- Abercrombie's CEO decided to publish the photograph in the Quarterly without obtaining the Appellants' consent.
- The catalog featured the photograph within a section on surfing culture titled "Surf Nekkid."
- On the pages immediately following the photograph, Abercrombie advertised for sale t-shirts, named "Final Heat Tees," which were designed to replicate the shirts worn by the Appellants in the photograph.
Procedural Posture:
- George Downing and other surfers (Appellants) filed a complaint against Abercrombie & Fitch in the United States District Court for the Central District of California.
- The complaint alleged misappropriation of name and likeness under California law, a Lanham Act violation, negligence, and defamation.
- Both parties filed cross-motions for summary judgment.
- The district court granted summary judgment in favor of defendant Abercrombie & Fitch on all claims.
- The district court subsequently awarded attorneys' fees to Abercrombie as the prevailing party.
- The plaintiffs (Appellants) appealed the district court's grant of summary judgment and the award of attorneys' fees to the United States Court of Appeals for the Ninth Circuit.
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Issue:
Does the unauthorized use of a photograph of identifiable individuals in a commercial catalog to sell themed apparel violate California's right of publicity, or is such use protected as expression under the First Amendment or preempted by the federal Copyright Act?
Opinions:
Majority - Hug
Yes, the unauthorized use of the photograph violates California's right of publicity and is not protected by the First Amendment or preempted by the Copyright Act. Abercrombie's use of the photograph was commercial and not entitled to First Amendment protection because it served as mere 'window-dressing' to advance the catalog's surf theme and sell products. The connection between the photograph and the editorial content was tenuous; the photo did not significantly contribute to a matter of public interest, as Appellants were not mentioned or connected to the story. The court also held that the state law right of publicity claims were not preempted by the Copyright Act. The subject matter of a publicity claim is the person's 'persona' (name and likeness), which is not a 'work of authorship' subject to copyright, unlike the photograph itself. Finally, the court found that a genuine issue of material fact existed as to whether Abercrombie's use created a likelihood of confusion that the surfers sponsored or endorsed its products under the Lanham Act, and that the nominative fair use defense was inapplicable because Abercrombie used the persona to sell its own goods, not to refer to the plaintiffs' 'product'.
Analysis:
This decision clarifies the boundary between protected First Amendment expression and unprotected commercial speech in the context of the right of publicity. It establishes that a commercial enterprise cannot shield itself from liability for misappropriation by merely placing an individual's likeness within a publication that also contains related editorial content. The ruling strongly affirms that the right of publicity protects an individual's underlying persona, which is distinct from the copyright of a work in which that persona is captured, thereby preventing copyright law from preempting most publicity claims. This precedent strengthens the ability of individuals to control the commercial exploitation of their identity, particularly against advertisers who use their likeness to enhance a product's appeal.
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