12 August 2013Copyright

Mad Men image rights case settles in LA

The producers of award-winning TV series Mad Men and former fashion model and actress, Gita Hall May, have settled a US legal dispute over the use of her image.

May sued Lions Gate Entertainment in March this year after seeing her photo appear in the title sequence of the popular 1960s period drama. At the start, the shadow of a businessman falls through New York skyscapers against a backdrop of period adverts.

One image, originally used in a hairspray advert for Revlon, is that of May, who claimed she did not agree for the TV show’s producers to use it. She argued that the titles, which have been in used in each episode since 2007, have been integral to the series’ success.

In the complaint, filed at the Superior Court of the state of California for the county of Los Angeles, May sued on a number of grounds, including misappropriation of right of publicity, and sought unspecified damages.

In a motion to strike the complaint in April, Lions Gate said the image was visible for just over one second, and had been altered and combined with dozens of other altered images taken from period advertisements. These images, added to new creative elements, ensured the “highly distinctive” opening sequence is as creative as the series itself, Lions Gate said.

The producers said the series and its opening title sequence are transformative works in which May’s “fleeting and altered image is but one of the many raw materials from which an original work has been synthesized”, and therefore are protected by the First Amendment.

The case has now settled, according to court documents, although it is unclear on what terms.

Jon Reichman, partner at Kenyon & Kenyon LLP, said he assumes the show’s producers “paid her [May] to make the case go away” with a lump sum that “wasn’t too onerous”.

“They probably felt it wasn’t worth the costs of litigation despite being in a strong position on the merits of the case. Under US right of publicity law, there is a wide exception when the work is used as a work of expression. If they had fought, they could have come out ahead.”

Insurance companies typically pressure their clients to settle legal cases, Reichman added, so Lions Gate’s insurers may have been “calling the shots” in this agreement.

Speaking about the dispute, he said: “Any popular TV show or movie is a magnet for copyright or right of publicity claims, so it doesn’t surprise me that this type of case has cropped up.”

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