Can someone copyright his or her looks?

Published on July 23, 2011 under Marketing, Business

Old Navy Super C-U-T-E ad

It's been all over the news today. Celebrity socialite Kim Kardashian suddenly has an issue with an ad campaign that clothing retailer Old Navy has been running since February.

The campaign is called "Super C-U-T-E" and it features what looks like a model singing and dancing around in a makeshift music video to advertise Old Navy jeans. Doesn't seem like much, but the real controversy is how much this model looks like a spitting image of Kardashian.

Despite that the campaign has been running since February, Kardashian has now filed a lawsuit claiming that Old Navy is literally trying to use her likeness and the "celebrity" she's built to sell jeans without paying her. Does she have a case?

Who is this girl?

Melissa MolinaroThe model in question is Melissa Molinaro. Originally from Canada, Molinaro has been working since 2002 as a singer, actress, choreographer, and model. She landed her first music deal at the age of 18 with the girl group Goddess. Since then, Melissa has been popping up in music-related reality shows, sitcoms, and even in some movies. Just from reading her resume, I can see she's growing in fame to the point that she would cross paths with Kardashian.

Thus lies the problem. That photo above is NOT of Kim Kardashian, but of Molinaro. Especially from looking at the Old Navy ad, she's a spitting image of Kim, only more slender in my honest opinion. You look at the ad and one could think it's Kardashian, but why would Kim now make a problem?

From Kim's point of view

"I've worked hard to support the products I'm personally involved with and that I believe in."

Like her or not, Kim Kardashian has built herself a celebrity empire as a socialite, reality show star, and now product spokesperson. I walk around downtown and I see her picture on ads for Midori and Sketchers. I see her on some celebrity or Woman's magazine at least twice a month (always in the same pose too!). Many of us can claim she's talentless and has about as much worth to society as does Paris Hilton, but people eat her up everywhere.

I did a little digging into this, and apparently found out it's not anything personal. The reality is that Kim and her family had gotten into a deal with Sears last year to be spokesmodels and probably push products with their name on it. Thus now you have a competitor's commercials featuring someone who looks like the very person you just paid millions to, and thus they're might be a problem.

Does Kim have a case though?

D-Jam VS OrbitalI remember back around 2001-2006, I used to wear a pair of lights when I DJed in clubs and raves. The lights were special work lights one can wear like glasses. They had a unique look, and I'll admit it became a talking point amongst colleagues and partygoers when they saw them. However, it was not an original idea.

The techno duo known as Orbital were the first to really do the lights. When I saw them play in Chicago, I was mesmerized by their stage presence and how those lights shot out to the crowd. I ended up buying them just to try to stand out from the million other DJs in Chicago.

At the time, some knew who Orbital were, and wondered why I would copy their thing. The reality was I was more inspired, but I also knew I'd never get to their level of fame. However, let's say I did. Say I suddenly went from playing smaller clubs and some local raves to suddenly ending up playing massive events in Europe. Could I still wear the lights?

The answer is no. Two reasons:

  1. Those lights are a very distinctive trademark of Orbital's brand image. Maybe they don't have anything legally set in stone, but my wearing those lights will only enact as if someone were to make money off doing covers off other people's music without paying royalties.
  2. It doesn't help me grow in my career...if I were trying to be a big name DJ. How would I grow as a performer or artist if I'm basically imitating someone else? Yes a DJ set from me would not sound like a performance from Orbital. I mean, I'm not even producing music, but for me to wear those lights when I am at a success point isn't a good branding direction.

So if I suddenly appeared spinning vinyl or playing with controllers in an Old Navy ad while wearing those lights, Orbital could make a case against me. The rationale is that those lights are a distinctive part of their image. Plus it's not like they're my nose or eyes or hair. They're a small cheap gadget.

In the case of Melissa Molinaro, she isn't wearing clothing that only Kim Kardashian wears. Melissa's face, hair, body, skin color, etc...that's all her naturally. If she had undergone loads of cosmetic surgery to look like Kim, then maybe there could be a case, but suing someone because they were born and ended up growing up to look like a known celebrity won't fly in a courtroom. Not in my opinion.

This case does strike a chord in many aspects. This is the same case when one uses a font, image, or anything that could distinctively be trademarked. Unfortunately, Kim might be a famous face, but she can't trademark her face. Molinaro was born the way she looks, and thus no one could tell her she's not allowed to look the way she looks.

Let's be frank here. Old Navy knew what it was getting into when they made this campaign. I'm sure they wanted to cash in a bit on some of the Kardashian fame, as many of us have never heard of Melissa Molinaro before this incident. However, they did play this out well. They didn't jokingly name Melissa something like "Kammy Kirtashia" or something that made it obvious, or put Melissa with actresses who look like Kim's sisters and mom. They made no real reference of any kind to Kim Kardashian, so the reality is that they simply hired Melissa Molinaro and she just happens to look like a missing Kardashian sister.

From a musical standpoint, I would say that while Melissa has probably gotten more into the spotlight not just for this ad, but for also dating Kim's ex, she might want to think about an image adjustment. It's for the same reason as I put above when it came to my DJing and those lights. When Britney Spears came out, the record labels all rushed to find some young pretty blonde girl to sing pop music. Over time Christina, Jessica, and Mandy all changed themselves up simply so they would not become Britney imitators.

A big part of branding is about being unique and distinctive. I don't care if it's for a singer, or soft drink, automobile maker, or dotcom. Branding yourself as an imitation of someone or something more known won't take you very far in the long run, even if you can get away with it legally.

What do you think? Does Kim have a case? Have you ever seen other cases of "legal imitation" in the name of branding?

Tags: kim kardashian, old navy, branding, copyright, lawsuit

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