Kim Kardashian, the most recognizable name in reality television, has filed a $10 million lawsuit in California federal court asserting that fast fashion brand Missguided has made her into an “unwitting and unwilling spokesperson” for its celebrity knockoff clothing products.
The filing describes
“Missguided does not merely replicate the looks of these celebrities as seen on red carpets, in paparazzi photos, and in social media posts…[it] systematically uses the names and images of Kardashian and other celebrities to advertise and spark interest in its website and clothing.”
The complaint’s allegations include:
- Missguided’s website includes a section called “Crushin’ on Kim K”, which provides a link to “Shop Kim K.” (although recent review indicates the link is currently broken).
- Kardashian’s name and likeness are prominently used without her permission to promote the products.
- Such unauthorized usage of Ms. Kardashian’s face and name have led many to incorrectly believe that she is collaborating with the brand.
Ms. Kardashian is suing for violation of her right of publicity and trademark infringement and is seeking economic damages and an injunction barring Missguided from using her name, image and likeness.
What is a Right of Publicity?
The right of publicity is a property right which controls the commercial use of an individual’s identity. It protects famous entertainers, athletes, and other celebrities from the unapproved use of their name, voice, image, or likeness. When addressed through common law, it is a misrepresentation of endorsement through the tort of passing off.
Economic Damages Involving Publicity Rights
Monetary damages involving the right of publicity relate to the resulting harm to the commercial value of the underlying property. Damages may be measured by (i) the fair market value of the misappropriated elements (ii) lost future earnings potential or (iii) unjust enrichment (i.e. a disgorgement of the profits the defendant generated by employing the misappropriated elements).
Damage to the fair market value of the misappropriated exploitation of publicity rights may be based on a discounted cash flow of what is expected in the future. However, such cash flows are often difficult to estimate because they are (i) potentially long lasting, and (ii) subject to changing whims of what is popular. For cultural icons, the licensing potential continues past death.
Licensing rates representing the fair market value of the misappropriated elements can vary based on both the celebrity’s popularity and the particular item (e.g., photographs, clothing, or reproductions) involved. Notably, use of a celebrity likeness for advertising and packaging may not involve a percentage royalty rate multiplied by a revenue amount, but rather a flat fee for use. Whether as a flat amount or royalty rate, Ms. Kardashian may be able to demonstrate amounts paid to her for similar use. Generally, established celebrities may receive a royalty rate of around 10 percent, but there are certainly instances when the amount may be higher, especially when the celebrity is intrinsically tied to the product’s worth.
An unjust enrichment calculation would capture the incremental profits enjoyed by the defendants and associated with the misappropriation, allocating the economic value between infringing and non-infringing activities that are occurring simultaneously. Disgorgement of all profits from the advertised product may overstate the damages, as the disgorged profits should pertain only to the misappropriated elements, and not capture the component of profits that might relate to sales of the product without the misappropriation.