Allen v. National Video, Inc.

• Decision Date: 16 May 1985
• Docket Number: No. 84 Civ. 2764 (CBM).,84 Civ. 2764 (CBM).
• Citation: 610 F. Supp. 612
• Parties: Woody ALLEN, Plaintiff, v. NATIONAL VIDEO, INC., Ron Smith, d/b/a Ron Smith Celebrity LookAlikes, and Phil Boroff, Defendants.
• Court: U.S. District Court — Southern District of New York

610 F. Supp. 612

Woody ALLEN, Plaintiff, v. NATIONAL VIDEO, INC., Ron Smith, d/b/a Ron Smith Celebrity LookAlikes, and Phil Boroff, Defendants.

No. 84 Civ. 2764 (CBM).

United States District Court, S.D. New York.

May 16, 1985.

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Bornstein & Laufer by Jacob Laufer, New York City, for plaintiff.

Lester Schwab Katz & Dwyer by Patrick A. Lyons, Thomas A. Catalano, New York City, for defendant National Video.

Frankfurt Garbus Klein & Selz by Richard Kurnit, New York City, N.Y., for defendants Smith & Boroff.

OPINION

MOTLEY, Chief Judge.

This case arises because plaintiff, to paraphrase Groucho Marx, wouldn't belong to any video club that would have him as a member. More precisely, plaintiff sues over an advertisement for defendant National Video (National) in which defendant Boroff, allegedly masquarading as plaintiff, portrays a satisfied holder of National's movie rental V.I.P. Card. Plaintiff asserts that the advertisement appropriates his face and implies his endorsement, and that it therefore violates his statutory right to privacy, his right to publicity, and the federal Lanham Act's prohibition of misleading advertising. Plaintiff, basing jurisdiction on diversity of citizenship, seeks an injunction against Boroff and defendant Smith, Boroff's agent, and damages against all defendants.¹

Defendants, while conceding that Boroff looks remarkably like plaintiff, deny that the advertisement appropriates plaintiff's likeness or that it poses a likelihood of consumer confusion. In addition, defendants Smith and Boroff seek indemnity under an alleged contract with defendant National, and charge that National violated Boroff's own privacy rights and breached the contract in using Boroff's picture without a required disclaimer and by placing it in media not authorized by the contract. National disputes that it ever entered into the alleged contract, and claims instead to have a general release from Boroff.

This matter is before the court on cross motions for summary judgment on the above claims, and on the motions of plaintiff and defendant National to amend their pleadings. For the reasons set forth below, plaintiff's motion for summary judgment is granted; defendants' motions for summary judgment against plaintiff are denied; defendants Smith and Boroff's motion for summary judgment against defendant National is granted in part and denied in part. The motions of plaintiff and defendant National to amend their pleadings are granted.

FACTS

The following facts are not in dispute. Plaintiff Woody Allen is a film director, writer, actor, and comedian. Among the films plaintiff has directed are "Annie Hall," which won several Academy Awards, "Manhattan," "Bananas," "Sleeper," "Broadway Danny Rose," and, most recently, "The Purple Rose of Cairo."² In addition to being a critically successful artist, plaintiff has for more than 15 years been a major international celebrity. Although he has not often lent his name to commercial endeavors other than his own projects, plaintiff's many years in show business have made his name and his face familiar to millions of people. This familiarity, and plaintiff's reputation for artistic integrity, have significant, exploitable, commercial value.

The present action arises from an advertisement, placed by National to promote its nationally franchised video rental chain, containing a photograph of defendant Boroff taken on September 2, 1983. The photograph portrays a customer in a National Video store, an individual in his forties, with a high forehead, tousled hair, and heavy black glasses. The customer's elbow is on the counter, and his face, bearing an expression at once quizzical and somewhat smug, is leaning on his hand. It is not disputed that, in general, the physical features and pose are characteristic of plaintiff.

The staging of the photograph also evokes associations with plaintiff. Sitting on the counter are videotape cassettes of "Annie Hall" and "Bananas," two of plaintiff's best known films, as well as "Casablanca" and "The Maltese Falcon." The latter two are Humphrey Bogart films of the 1940's associated with plaintiff primarily because of his play and film "Play It Again, Sam," in which the spirit of Bogart appears to the character played by Allen and offers him romantic advice. In addition, the title "Play It Again, Sam" is a famous, although inaccurate, quotation from "Casablanca."

The individual in the advertisement is holding up a National Video V.I.P. Card, which apparently entitles the bearer to favorable terms on movie rentals. The woman behind the counter is smiling at the customer and appears to be gasping in exaggerated excitement at the presence of a celebrity.

The photograph was used in an advertisement which appeared in the March 1984 issue of "Video Review," a magazine published in New York and distributed in the Southern District, and in the April 1984 issue of "Take One," an in-house publication which National distributes to its franchisees across the country. The headline on the advertisement reads "Become a V.I.P. at National Video. We'll Make You Feel Like a Star." The copy goes on to explain that holders of the V.I.P. card receive "hassle-free movie renting" and "special savings" and concludes that "you don't need a famous face to be treated to some pretty famous service."

The same photograph and headline were also used on countercards distributed to National's franchisees. Although the advertisement that ran in "Video Review" contained a disclaimer in small print reading "Celebrity double provided by Ron Smith's Celebrity Look-Alike's, Los Angeles, Calif.," no such disclaimer appeared in the other versions of the advertisement.

None of the defendants deny that the advertisements in question were designed, placed, and authorized by defendant National, that defendant Boroff was selected and posed as he was to capitalize on his resemblance to plaintiff and to attract the attention of movie watchers, that defendants Boroff and Smith were aware of this purpose in agreeing to supply Boroff's services, and that in fact Smith and Boroff have on other occasions offered the services of Boroff, a Los Angeles-based actor and director, as a look-alike for plaintiff. Moreover, defendants do not dispute that the photograph in question was used for commercial purposes, and that plaintiff did not give his consent to the use of the photograph.

Plaintiff maintains that these undisputed facts require the court to enter summary judgment for him on his right to privacy, right of publicity, and Lanham Act claims. He urges the court to find, as a matter of law, that defendants used his picture or portrait for commercial purposes without his permission, and that the advertisements were materially misleading and likely to result in consumer confusion as to his endorsement of National's services.

Defendants insist that other disputed facts require denial of plaintiff's motion. Although defendants concede that they sought to evoke by reference plaintiff's general persona, they strenuously deny that they intended to imply that the person in the photograph was actually plaintiff or that plaintiff endorsed National. Defendants offer their own interpretation of the advertisement to support their assertion that the photograph does not depict plaintiff. According to defendants, the idea of the advertisement is that even people who are not stars are treated like stars at National Video. They insist that the advertisement depicts a "Woody Allen fan," so dedicated that he has adopted his idol's appearance and mannerisms, who is able to live out his fantasy by receiving star treatment at National Video. The knowing viewer is supposed to be amused that the counter person actually believes that the customer is Woody Allen.

Defendants urge that this interpretation cannot be rejected as a matter of law, and that if defendant Boroff merely appeared as someone who looks like Woody Allen, but not as Woody Allen himself, then plaintiff's rights were not violated. Defendants further seek summary judgment against plaintiff on the basis that plaintiff has offered no actual evidence that anyone was actually deceived into thinking that the photograph was of him.³ In addition, defendants Smith and Boroff seek summary judgment on the basis that they did not "use" the picture in New York, as required under the privacy statute, because the photo session took place in Oregon and they had no control over the design of the advertisement or its placement. Smith and Boroff further urge that they never misrepresented Boroff as plaintiff, that they had insisted that National include a disclaimer in all advertisements using the photo, and that they are therefore guilty of no wrongful conduct and cannot be held liable for the misdeeds of National.

Plaintiff rejects defendants' explanation of the advertisement as fanciful and asserts that since all defendants knowingly participated in creating a photograph that amounts to a portrait of plaintiff to be used for advertising in a national magazine, they are all jointly and severally liable for violating plaintiff's rights.

In addition to the issues outlined above, defendants Smith and Boroff seek indemnity from defendant National, which itself contests the form and content of its contract with Smith and Boroff. It is not disputed that in preparation for the photo session in Oregon, Smith and Boroff sent to National a printed form contract which, inter alia, permitted the photographs produced to be used "one or two times" in "Video Review" magazine, prohibited National from representing that Boroff was really Woody Allen, required a disclaimer such as was used in one of the advertisements, and bound National to "forever indemnify and hold harmless and compensate completely" Smith and Boroff for any civil liability resulting from the use of the lookalike's picture....