From Kim and Old Navy to Kohls and Black’s Friday
Where Kim sees an attempt to exploit her image, I see a slippery slope. Many right to publicity claims have succeeded in the past (cases brought by Bette Midler, Vanna White, & Cheers characters) but Kim’s case can be differentiated: purposeful exploitation of her image is unclear because Molinaro read the casting call in an interview and it in no way sounded like a Kim K description.
While Molinaro resembles Kim, the episode is not show what we commonly see Kim doing. Molinaro was portraying an entertainer and Kim does not make money by singing or dancing–and from my understanding, she is not shown doing these things on her TV shows and I presume also not in the sex tape that made her famous.
If Kim succeeds in this claim she could succeed in stopping Molinaro from doing any job in the public eye and this is not fair. Molinaro’s look was not really altered for the commercial: she has had the same look since her first TV appearances in 2005.
Right of publicity does not allow you to trample over the rights of another. If that were the case the entertainment world could not include all of the ladies below because they arguably have the same look and so one could not exist without infringing the other.
Alas, I have digressed from the topic that prompted my post: Kohl’s new Black Friday, “Friday” commercials.
Kohl’s recently released “Gotta go to Kohl’s on Black Friday” is definitely ripe for a lawsuit if they did not get rights to use this song for their ads because although the words are different and sung by the star of the commercial who does not resemble Black, Kohl’s is trying to benefit from the fame of Black’s video that went viral. Under a copyright infringement claim I think that the Kohl’s video would pass as a parody under the Fair Use defense. A right to publicity claim here that would play out in court (rather than settle) would be interesting.
Yes, Kohl’s version may be just as annoying as the original but it is effective because it is memorable.