The IP Factor

Woody Allen the actor and film director settled out of court with clothing magnate Dov Charney of American Apparel for a wacking $5 million dollar settlement ofor damages resulting from illegal use of Allen’s picture in a bill-board campaign.

The settlement spares both men the public humiliation of a trial that was expected to last up to a month.

Allen objected to the use of his picture in the Los Angeles-based company’s billboards, which showed him dressed in Hasidic Jewish clothing above the American Apparel logo and the words “the holy rebbe” in Yiddish, and initially demanded $10m in damages for use of his image. Apparently, he has a policy not to endorse commercial interests.

Charney protested in his defence that the billboards had only been up for a week in a few streets of New York and Los Angeles.  

I find the case interesting for a number of reasons. As Woody Allen is the director and actor of Annie Hall, the movie from where the image was taken, he can legitimately claim copyright infringement. His face is being used to promote business without his permission. On the other hand, this image is a single still from a full length feature film. It is a reuse of copyright material for a totally different purpose and does not damage Allen’s chances of further enrichment for the film. Indeed, can only provide free advertising. Clearly there was damage, but $10 Million worth? even as a punishment, this is out of all proportion. I am not sure that 30 years on, the entire film is worth that much!

In  Israel, one can receive about $12,500 as punitive damages for infringements without showing damage, and in some cases, perhaps double that. I know that the US system is different, but I still can’t see any sort of basis for this amount of damage. The character is clearly hassidic, but with the hat and beard, it is only recogniseable as Allen because of the glasses. 

An interesting defence offered was that the images were designed to promote dialog and not to promote trade with a similarity between  Charney and Allen’s sex scandal histories. If the campaign was not commercial, one wonders why was American Apparel’s logo was featured? I don’t know what American Apparel’s clothing line looks like, but I doubt it is as Hassidic as the clothing in the image.

The specific scene of the film shows Allen as Alvy Singer at a dinner hosted by Annie Hall’s non-Jewish family. He feels so out of place that he imagines himself as a Hassidic Jew. Charney claimed that the personification of discomfort was a metaphor for what he went through with sexual harassment lawsuits. Woody Allen went through a very public divorce scandal with Mia Farrow after he began an affair with Soon-Yi Previn, her adopted daughter, who he has since married.

Charney disassociated himself from the deal to settle, which he claimed was reached by American Apparel’s insurers. Whilst being sympathetic to Allen’s comments that this was how he makes a living nowadays, I would have liked to see the two parties coming up with a donation to a Hassidic charity, perhaps one dealing with sexual abuse within the community. I suspect the Hassidic courts would prefer not to be associated with either Charnley or with Woody Allen.