Imitation: Flattering or Litigious?

Lady Day · Mar 2, 2011

I can see that, and actually agree with you on that, and I do think the estate asking for all the dresses to be destroyed is a bit creepy, but we will have to see what a judge says.

As Lizzie said, its has been done many times before, so I dont think there is precedent, but I am curious to know the success rate of cases like this. I think this is all interesting.

LD

miss_elise · Mar 3, 2011

Perhaps they should have trademarked the name 'Bette Davis'. Then they would have a stronger case for infringment or damage to the brand.

Plus to get a trademark in the first place you have to prove that the name/personality in question is worthy of protection and in danger of infringement.

LizzieMaine · Mar 3, 2011

I suspect they're suing under the "California Right Of Publicity Law," which allows the heirs of any individual who died in the state after 1939 to control the rights to their image, likeness, and name for 70 years after their death. As I understand it, trademarks aren't necessary to enforce that law -- all you need to be is a legitimate heir to the individual involved.

The Davis heirs would have to prove that the Stop Staring people were specifically referring to *Bette* Davis, and not some other random "B. Davis." It's pretty obvious that they *were* referring to Bette -- unless there's some demand for an Ann B. Davis dress line, who else could it be -- but specifically *proving* that in court might be more difficult than they think. Some lawyers are going to make a nice piece of change out of this case unless they settle out of court for a percentage or something.

miss_elise · Mar 3, 2011

Do they have to prove damage to the name? or just unauthorise use?

LizzieMaine · Mar 3, 2011

As far as I know, the right-of-publicity law covers any use without permission -- that's how I've heard of it being applied in the past. The whole idea behind it was that the heirs of celebrities -- specifically the heirs of Bela Lugosi and Boris Karloff, who pushed hardest for the law -- were fed up with all the unauthorized merchandise bearing images of their relatives, and wanted to have some control over how those images were to be used.

Those cases were pretty clear cut though -- actual celebrity images were involved. As long as SS! hasn't used photos of Bette Davis in any of their promotional material, or even models done up to resemble Bette, they might be able to fight it. The burden would be on the Davis heirs to *prove* to the court that the company specifically were referring to Bette in naming the dress.

miss_elise · Mar 3, 2011

Interesting. I'm pretty sure we don't have anything like that over here.

LizzieMaine · Mar 3, 2011

America leads the world in inconvenient intellectual property law.

ZombieGirl · Mar 3, 2011

LizzieMaine said:
America leads the world in inconvenient intellectual property law.

I'm afraid sometimes we lead the world in pretty much any type of frivolous lawsuit.

Anyway...

Now I think the fact that the dress in no way represents Bette Davis speaks pretty heavily against StopStaring. If they were, in fact, naming the dress after Bette Davis simply to capitalize on her fame rather than her influence then it seems to me that their motives are questionable. In my opinion, both parties stand to make money on the name/brand of a dead celebrity... at least Davis' estate has legal rights to such profits. Now that's all assuming, as others have pointed out, that they can prove SS of naming the dress after the actress.

Lauren · Mar 3, 2011

I looked this up because I was interested.
Even though Stop Staring calls it the B Davis dress, some of the folks who bought wholesale are calling it the Bette Davis dress, in some cases showing a photo of the star in page of the dress for sale.
I can understand being somewhat upset about that. I'm not a big fan of seeing my photo show up in things for sale without my permission.

But it does seem a little extreme...
I admire anyone who can make a go of a small clothing line in California. I hope they survive this.

There's a 9 page PDF file with case details here.

sheeplady · Mar 3, 2011

It seems as though the ones that the Bette Davis estate should be suing are the ones that are outright using her name (in full) and likeness (in picture). But since I am betting that many of these companies are out of state, the California law that LizzeMaine mentions does not apply. Therefore they are going after the one they can touch in the state- and that is Stop Staring (and probably they will make more money this way).

I did some reading on the internet, and it looks like Bette Davis' estate will have to prove the gross revenue that SS made on the dress, and they can claim this amount minus the expenses that SS had in production of the dress. SS could also be on the hook for punitive damages.

Honestly, I can see both sides of this. I don't like people suing people over useless stuff. (I'd be really upset if I got on a multi-week trial for something like this, meanwhile families are waiting to have trials scheduled involving time in prison or life and death because our courts are clogged.) However, I also wouldn't like someone using my picture next to a product without my permission while I was living.

I think that if I was famous, I'd put something in my will allowing people to use my name and image however they wanted after I was dead. It doesn't set well with me that people would sue over the use of my name decades after I died, just to keep making money off of my likeness. I wouldn't want my name associated with such lawsuits, it is not how I'd like to be remembered. It seems rather creepy.

Lily Powers · Mar 3, 2011

It doesn't seem to me that the average Stop Staring! customer would be more likely to buy a dress called "B Davis" than one called "Lassie Come Home," as long the picture of the dress on the model suited their aesthetic. In other words, the name doesn't make a difference in the purchasing of the garment.

The suit asks for the destruction of the dresses. I'm sorry, but infringement or not, that's just an obscene waste. I'd be more sympathetic if the plaintiffs wanted the profits from the sale of those dresses to go to a worthy cause.

Another infringement case involved Bogart LLC v. Ashley Furniture, who marketed a Bogart Couch (which I personally think put the "ugh" in "ugly" where furniture is concerned). The suit claimed Bogart LLC had been paid millions of dollars in licensing fees for the use of the "Bogart" name in a furniture line by Thomasville, and Ashley's use of the name would be confusing and might take a bit out the their deal with Thomasville.

Lady Day · Mar 3, 2011

Lily Powers said:
It doesn't seem to me that the average Stop Staring! customer would be more likely to buy a dress called "B Davis" than one called "Lassie Come Home," as long the picture of the dress on the model suited their aesthetic. In other words, the name doesn't make a difference in the purchasing of the garment.

If that were the case then companies wouldn't pay millions upon millions of dollars for celebrity endorsements of products.

What I find interesting is if the estate sent a cease and desist notification prior to the lawsuit (I suppose I should read up on it). If not then geeze, but if they did and SS! said nope, then that's another story.

LD

LizzieMaine · Mar 3, 2011

The suit claims that there's a "pattern of behavior" on the part of SS!, in which they use intentional misspellings to suggest the name of a celebrity in naming their lines while avoiding any need to pay royalties for the use of such names. There doesn't seem to be any overt instances on their website of this in the copy itself -- but a number of the products have catalog numbers that suggest movie-star names: MYRNA, KTHRN, HRLOW, etc. There's also a dress listed as "MDMEN," which will likely draw attention from a certain cable-tv network if they're not careful.

miss_elise · Mar 4, 2011

Is there a difference between naming a dress "B. Davis" and writing a song about "Bette Davis eyes"?

Product codes are a bit different I think, because they're not specific, and could be the designer's name, or just the theme naming in the system - I guess mostly for internal use. We have projects at work that are named after all random things.

Lady Day · Mar 4, 2011

She was alive when that song was made, so if she wanted to, she could have done something but didnt.

LD

jetgirl · Mar 6, 2011

Lady Day said:
But that's what an estate is.LD

Yes, I am completely aware of the definition of "estate". My problem is equating a corporation (the estate managed by an ad agency) with a person. In forming an opinion, we shouldn't feel we are supporting Bette Davis the wonderful actor. As an aside; I may feel that they way they name their dresses is silly and sort of slimy, but I have an issue with the crazy overrunning of intellectual property lawsuits in this country.
The reference to "Bette Davis Eyes" is commenting on an attribute of a public person, thereby most likely it would fall under the idea that personality rights do not trump legitimate First Amendment rights of artistic free expression. But she seemed to enjoy the attention she got from this song.
It was bugging me and I finally remembered the dress they probably were inspired by from "Of Human Bondage". She has a great look in this movie and everyone should watch it btw. I would have thought it would have been more clever to call it the BNDGE Dress!

Lady Day · Mar 6, 2011

jetgirl said:
My problem is equating a corporation (the estate managed by an ad agency) with a person.

A corporation is, legally anyway, a 'person' in US law. Im just trying to get emotion and what we feel out of this because thats not gonna fly in a court room. It seems the problem isnt that they are suing for this, but the intellectual property laws that are on the books and people/corporations using those to, define it how you will, attack others/protect their estate, etc.

I get that a lot of this is a publicity/money making set up for a lot of the plaintiffs. But that also does not mean they dont have a right to do it, especially if they are right, right?

LD

jetgirl · Mar 7, 2011

Lady Day said:
A corporation is, legally anyway, a 'person' in US law. Im just trying to get emotion and what we feel out of this because thats not gonna fly in a court room. It seems the problem isnt that they are suing for this, but the intellectual property laws that are on the books and people/corporations using those to, define it how you will, attack others/protect their estate, etc.

LD

You're right. Actually it is quite maddening - the corporation as person ruling. I meant person as a, well, actual human being.

Ah well. Interesting to find out the outcome.

Lady Day · Mar 7, 2011

Dont get me started on that disgusting part of US history. A corporation is a person who can not die, and who is legally bonded to its shareholders to make profit. Thats all they 'live' for, and they have all the rights I do. GRRRRRRR

LizzieMaine · Mar 7, 2011

And it puts a whole new slant on "of the people, by the people, and for the people."

Imitation: Flattering or Litigious?

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