Downing v. Abercrombie & Fitch
2001 WL 1045646, 265 F.3d 994 (2001)
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Rule of Law:
The First Amendment does not protect the unauthorized commercial use of a person's name and likeness in an advertising publication when the use is not sufficiently related to the editorial content and serves primarily to promote a product.
Facts:
- Appellants are several well-known surfers.
- In 1965, photographer LeRoy Grannis took a photograph of the Appellants at the Makaha International Surf Championship in Hawaii.
- Abercrombie and Fitch ('Abercrombie'), a clothing retailer, publishes the 'Abercrombie and Fitch Quarterly,' a subscription catalog that serves as its primary advertising vehicle.
- For its Spring 1999 surf-themed Quarterly, Abercrombie purchased the photograph from Grannis, who handwrote the Appellants' names at the bottom.
- Without Appellants' permission, Abercrombie published the photograph in a section of the Quarterly titled 'Surf Nekkid.'
- The Quarterly also advertised for sale 'Final Heat Tees,' which were t-shirts designed to look exactly like those worn by Appellants in the photograph.
- The catalog included a 700-word story about the history of a California beach, but the story did not mention Appellants or connect them to the article, and the caption for the photograph incorrectly identified where and when it was taken.
Procedural Posture:
- George Downing and other surfers (Appellants) filed a complaint against Abercrombie and Fitch in the United States District Court for the Central District of California.
- The complaint alleged commercial misappropriation under California law, a violation of the Lanham Act, negligence, and defamation.
- Both parties filed motions for summary judgment.
- The district court (trial court) granted summary judgment in favor of Abercrombie, holding that the state law claims were barred by the First Amendment and preempted by the Copyright Act, and that the Lanham Act claim failed.
- The district court also awarded attorneys' fees to Abercrombie.
- The surfers (Appellants) appealed the grant of summary judgment and the award of attorneys' fees to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does the First Amendment protect a clothing company's unauthorized use of a photograph of individuals in its commercial catalog where the photograph is used to advance the catalog's theme but has only a tenuous relationship to any editorial content?
Opinions:
Majority - Hug, Circuit Judge
No, the First Amendment does not protect this use. The use of a person's likeness in connection with a matter of public interest is not protected by the First Amendment when it is merely illustrative and does not contribute significantly to that public interest. Abercrombie used the Appellants' photograph essentially as 'window-dressing' to advance the catalog's commercial surf-theme, not as a core component of a news story. Unlike cases where a person's identity is central to a documentary or news report, here there was a tenuous relationship between the photograph and the editorial content. The photograph was placed immediately before the advertisement for the t-shirts modeled after those in the picture, highlighting its commercial nature. Furthermore, the Appellants' right of publicity claims are not preempted by the federal Copyright Act because the subject of their claim is their persona (names and likenesses), which is not a copyrightable 'work of authorship,' even when embodied in a copyrighted photograph. Finally, a genuine issue of material fact exists as to whether consumers would be confused into believing the Appellants endorsed Abercrombie's products, precluding summary judgment on the Lanham Act claim.
Analysis:
This decision clarifies the boundary between protected editorial speech and unprotected commercial speech in the context of the right of publicity. It establishes that a commercial entity cannot immunize its appropriation of a person's likeness simply by placing it near tangentially related editorial content within what is fundamentally an advertising vehicle. The case reinforces that courts will scrutinize the context and directness of the connection between the image and the editorial content to determine if the use is transformative and expressive or merely commercial and exploitative. This precedent makes it more difficult for advertisers to use celebrity likenesses without permission under the guise of newsworthiness.
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