Lanham Act Not Violated by Unconsented Use of Footage of Supermodel Janice Dickinson
By a MetNews Staff Writer
Janice Dickinson is seen modeling a gown. The Ninth U.S. Circuit Court of Appeals yesterday upheld the dismissal of her action under the Lanham Act based on the alleged misappropriation of her identity by the producers of the reality show, “Shahs of Sunset.”
The Ninth U.S. Circuit Court of Appeals yesterday affirmed the dismissal with prejudice of supermodel Janice Dickinson’s action against Ryan Seacrest Productions and others based on her involuntary and uncompensated appearance on an episode of Bravo’s former reality show, the “Shahs of Sunset.”
She was photographed without her permission and was cast into a contrived controversy, Dickinson alleged.
A three-judge panel, in a memorandum opinion, agreed with District Court Judge George H. Wu of the Central District of California that Dickinson’s action fails under the Second Circuit’s 1989 opinion in Rogers v. Grimaldi. There, Ginger Rogers (now deceased) sued over the alleged misappropriation of her identity in the film, “Ginger and Fred” which centered on fictional performers who were imitators of Rogers and Fred Astaire.
The Second Circuit held that “the interests in artistic expression…preclude application of the Lanham Act,” which protects trademarks.
Dickinson sued over use of her trademark—-her name and likeness—in connection with “Shas of Sunset,” which ended its run in May. She had appeared at the Beverly Hilton on Oct. 11, 2016, to participate in a fashion show, for charity, and, as she told it in her complaint, a staff member for the fashion show directed her to a rack of clothing; she was offered two outfits to wear, one a “shiny silver romper”; and she was “manipulated” into choosing the romper.
Although she signed no release, and had no intention of appearing in an episode of the television show, the complaint alleges, Dickinson was photographed in the garb both on the runway and in the dressing room. The pleading sets forth that in a scripted encounter, of which she had no foreknowledge, a cast member, Golnesa Gharachedaghi, and the event organizer, placed her in false light.
“In a scene from the episode, DICKINSON is shown in the backstage dressing area wearing the romper. Gharachedaghi looks at DICKINSON and tells ROSETTE, ‘What’s going on with that outfit?’ to which ROSETTE replies, ‘You got jacked.’ Gharachedaghi then exhibits purported outrage at how DICKINSON ‘stole’ her romper. The clear intent and meaning of the exchange is to portray DICKINSON as an arrogant unprofessional and purportedly past-her-prime celebrity attempting to push into Gharachedaghi’s fashion show experience, when in fact DICKINSON had no awareness of Gharachedaghi whatsoever, conducted herself at the fashion event in a professional manner for the purpose of supporting a charity, and indeed had her outfit effectively chosen for her by ROSETTE and his staff, and displayed no arrogance or ego about the outfit choice in any way. In short, the episode paints a false picture that DICKINSON deliberately asserted her star power to sabotage Gharachedaghi’s fashion runway debut by choosing the outfit that ROSETTE had specifically designated to someone else, and does so for the intentional purpose of giving Shahs a purported excuse to feature DICKINSON in the Episode and in promotion, marketing and advertising for it.”
Wu noted that under Rogers, “only the use of a trademark with ‘no artistic relevance to the underlying work whatsoever’ does not merit First Amendment protection.” He observed:
“The Court would find that the inclusion of Plaintiffs likeness, image, and name in the Episode, even if included without her consent, bore artistic relevance above zero. From the Court’s review of the Episode, part of the Episode focused on the Los Angeles Fashion Show, and a significant sub-plot of the Episode included the narrative that Plaintiff stole the romper earmarked for Gharachedaghi….Because of Plaintiff’s role in that narrative, false or not, the use of Plaintiffs name and likeness are artistically relevant to the Episode.”
Applying a further Rogers test, Wu said the allegations do not point to audiences being misled into thinking that Dickinson is “somehow behind” the episode or “sponsors” it.
He said of Dickinson:
“Plaintiff is a ‘world-famous’ and ‘indeed legendary supermodel,’ who makes appearances in the beauty, fashion, and entertainment industries.”
Ninth Circuit Opinion
The appeals panel—comprised of Ninth Circuit Judge Johnnie B. Rawlinson, Senior Ninth Circuit Judge N. Randy Smith, and First Circuit Judge Kermit V. Lipez, sitting by designation—centered its discussion on whether the television show explicitly misled the public. The opinion says:
“Dickinson maintains that Appellees exploited her mark to promote the Shahs series by taking advantage of the accumulated goodwill from her career as a supermodel. Dickinson did not allege that the Shahs episode or the promotional materials for that episode contained an explicit representation that Dickinson was an endorser or sponsor of the series. Rather, Dickinson alleged only that she made an appearance on the show….Thus, Dickinson failed to allege that Appellees, use of the mark is explicitly misleading as to source or sponsorship.”
The opinion continues:
“Dickinson contends the following two alleged false representations act together to deceive consumers into believing the romper controversy actually occurred: (1) that Shahs is unscripted and portrays real-life events; and (2) in the episode, Dickinson stole the romper and had a confrontation with a Shahs cast member related to the romper. Under Rogers, the relevant inquiry is not simply whether the content or advertisements are misleading, but whether the Appellees’ use of the mark explicitly misleads consumers as to the content of the work….
“Considered individually or collectively, the alleged misrepresentations do not explicitly mislead consumers as to the content of the episode.”
The case is Dickinson v. Ryan Seacrest Productions, LLC, 19-55415.
Dickinson last year received what was portrayed as a sizeable settlement—though the precise size was not disclosed—in an action against Bill Cosby. The payment was made by the actor/comic’s insurer.
She sued Cosby over his assertion, made through his lawyer, that she lied in 2014 about having been raped by him in 1982.
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