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Ivan J. Parron

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Kim Kardashian's Face-Off With Old Navy

Posted: 07/27/11 04:41 PM ET

At first glance it's the kind of thing that probably leaves you wondering where she gets off -- how someone could dare to try to prevent another aspiring female star from even looking like her. But take a second look, in more ways than one, and the $20 million lawsuit that Kim Kardashian is now bringing against Old Navy is a little more complicated than that. In the end, it may very well have merit and, regardless, it says plenty about the state of fame in our current culture and the fierce drive by those who have it to protect it.

If you're not aware of the case, Kardashian is suing Old Navy over a new commercial that she says features someone who looks uncannily like her, a casting decision that she believes was anything but accidental. Kardashian's attorney calls it a violation of his client's intellectual property -- in this case, Kardashian's very image -- and aims to hit Old Navy hard for the infringement. While to the average person the suit may seem frivolous at best, patently ridiculous at worst, believe me, Kim has a case. And one she can win.

There's plenty of precedent for what Kardashian and her lawyer are doing. In fact, it's done all the time, especially since we entered the era of omnipresent and highly lucrative celebrity endorsements, mass-media saturation and the ephemeral "instant-fame" that it can create and destroy in the span of just a few days and at the whim of a fickle public. Now more than ever for a celebrity, you are your brand. Kardashian knows this very well, which is why she's managed her image carefully and sometimes rabidly. Do you consider her one of those people we derisively refer to as "famous for nothing?" What kick-started that fame and eventually catapulted her to her current position in pop culture can be endlessly debated, but make no mistake, she's been very shrewd about managing her brand -- herself. That's why this lawsuit matters and why its outcome will have lasting repercussions legally and culturally, as others like it have.

If you need a quick refresher on just a few of those others, there was Bette Midler's famous suit against Ford back in 1988, in which she took on the company and its ad agency, Young and Rubicam, for using a vocal performer who sounded conspicuously like her to sell cars in one of their commercials. Vanna White, meanwhile, sued Samsung in 1993 for its use of a blonde wig-wearing robot that was supposed to be a game show host from the future, all to sell electronics. White maintained that the creation was clearly intended to reference her and her well-known status as the letter-turner on Wheel of Fortune. She won a partial victory. And these examples stand as merely a few forebears of what's possible now in our extraordinarily litigious and media-inundated culture. Since then, there have been claims against the use of a golf swing that supposedly bore too much of a resemblance to Tiger Woods's signature swing, and of course, Lindsay Lohan's infamous attempt to force the E-Trade baby into submission because it dared, in a commercial, to refer to a baby named Lindsay as a "milkaholic." (Don't ever let it be said that a certain amount of egomanical celebrity paranoia and isn't at play in some of these cases.) And this doesn't even get into the debate that continues to rage over the extension of personality and publicity rights after death. The legal battle to control that singular brand -- your very likeness -- doesn't end at the end of your life anymore.

For Kardashian, what her lawyer needs to prove is what Midler's attorney did all those years ago, namely that the company he's going after specifically sought an imitation of his client with the possible intention of knowingly deceiving the public. Midler turned down Ford when it first came to her about doing the commercial she eventually sued over, and in response the company hired one of her back-up singers to ostensibly sing like her. Obviously, since the girl in the Old Navy ad, Melissa Molinaro, just happens to be Kardashian ex Reggie Bush's new girlfriend, her lawyer has an instant connection to his client to exploit. There's no way Old Navy didn't know who it was getting when it hired Molinaro, and that may make it easier to prove that the company's intention was always to at least indirectly draw a mental link to Kardashian.

In the end, it's left up to the individual viewer to decide whether he or she is confused and believes that the person in the ad really is Kim Kardashian. But a court gets to decide whether the resemblance is close enough to violate the rights of Kardashian and whether that violation is willful and egregious enough to make Old Navy pay up to the tune of millions. Whether you think the suit itself is egregious doesn't much matter. This is the way it is these days and how it's going to stay.

 

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