When using photographs or images in a commercial context, getting an IP lawyer to assess the copyright situation is an obvious move. However, as the producers of hit TV show ‘Mad Men’ recently discovered, it may not be enough to check the copyright position. It may also be necessary to check whether there may be problems in using the identities of the persons represented in the image or photo that is being used.
Mad Men, an American drama set 1960s New York, follows the lives of protagonist Don Draper, and his team of high powered advertising executives, whilst simultaneously reflecting the darker sides of the American dream. The show has won numerous awards, including 7 Emmys, and famously counts Barack Obama as a fan.
However, for Lionsgate Entertainment executives, the dream recently turned slightly sour, as it emerged that Gita Hall May, a former actress and glamour model, was suing the show for using her image in the opening credits, without her consent. The image appears 11 seconds into the credit sequence, for a period of 2 seconds, and shows Gita’s face on the advertising board of an animated Madison Avenue skyscraper.
Although Gita had no claim over the image copyright, she objected to her face and likeness being exploited without her consent. The original photograph was taken by Richard Avendon for a Revlon hairspray advertisement. Gita May argues that she only consented to the use of her photographic likeness in that particular advert.
Ms. May, originally from Sweden, was allegedly surprised and angry to discover that, over 40 years later, her image had been “cropped from the photo, in secret, and inserted as a key element in the title sequence of a cable television series, without her consent and for commercial purposes.” Her legal team is demanding compensation, based on the value the image has contributed to Madmen’s revenue and profits. Clearly this will be a complicated calculation. But considering the show has now run for 6 seasons, spanning 70 episodes, across worldwide territories, any final figure may be lucrative for Gita May.
In the UK where the laws governing consent to use of images or photographs are less strict, the US rules which allow for individuals, whether famous or otherwise, “to protect against the misappropriation of their likeness” seem surprising. Essentially, this means that in the USA individuals can object to non-consensual use of their identities.
There is a still a slight caveat — likeness rights do not apply to all images featuring individuals, even if used in a commercial context. To qualify, the images must be used to represent an idea, product, service or thing. Thus in the present IP case, Ms. May asserts her rights over the image by arguing that its use in the Mad Men trailer is integral to demonstrating the authentic ‘feel’ of the show.
To expand this concept further, if for example, a photo was taken of an individual, and then used to promote a specific political party which the person did not want to be associated with, they could refuse to allow their likeness to be deployed in this way. Therefore, businesses should always be wary when using images to promote their interests, for example through product advertisements.
In the case of Mad Men, Ms. May only realised her image was being used, and consequently launched her IP claim, 5 years after the show was originally aired. This demonstrates how such claims can crop up at unexpected and potentially awkward times for businesses.
Lionsgate will undoubtedly feel frustrated that the issue has only emerged recently, when the financial stakes are much higher than say, in 2007, when the original pilot episode was aired. The moral of this story, is one can never be too careful when it comes to clearing IP rights.