One Kim Kardashian Is Enough, Thank You

Kim Kardashian, possessor of the world’s most famous Armenian-American posterior, has sued Old Navy over a television commercial featuring an actress with an uncanny resemblance to her. You can read a Washington Post account of the suit, and watch the ad, here, and read New York Daily News coverage here.

Celebrity impersonators can be a fascinating gray area of rights of publicity, but based on what I know, I’d have to say Kardashian has a very strong case here. It’s one thing when the context clearly alerts the audience that it sees an imitator, as is the case with every ersatz Elvis in Las Vegas. (I’d say the infamous decision favoring Vanna White in connection with a parody ad using a clearly robotic Vanna White was mistaken for this reason.) But you can’t simply appropriate celebrities’ well-known attributes for advertising purposes, as demonstrated by a string of cases won by Woody Allen, Tom Waits, and Bette Midler.

Nothing ever identifies the actress featured in Old Navy’s music-video-themed spot as anyone other than Kardashian, and there are plenty of hints that it really is her. For one, the ad repeatedly emphasizes her rear end, famously one of the actual Kardashian’s most significant assets. It also portrays her getting a mani-pedi, reading tabloids, and flirting her way out of a traffic ticket. And it’s all set to a horrible pop song of just the sort that the real Kim would record. Sounds like a Kardashian sister to me!

Moreover, there is plenty of indication that the actress, Melissa Molinaro, and the ad’s producers were aware of the similarity and exploiting it. The Post story quotes a tweet from Old Navy’s official Twitter account when the ad first aired in February: “@CBSNEWS reports that Old Navy’s Super CUTE star looks like @kimkardashian. #LOL. What do you think?” At times, Molinaro has coquettishly denied the resemblance — “It’s just crazy to me because I think I look like Melissa Molinaro,” she told E! News — but she also is styled to maximize the resemblance in the ad. And perhaps the strongest circumstantial evidence is the bizarre twist that Molinaro is now dating football star Reggie Bush — who was with Kardashian until after the ad aired. Ahem.

By the way, if you are one of those pop culture refuseniks who has never heard of Kim Kardashian (though she’s pretty hard to avoid, I must say), to get up to speed you can’t do much better than Wikipedia’s dry wit summarizing her career:

Kardashian has launched multiple fragrances, guest starred on numerous shows, competed on ABC’s Dancing with the Stars, and has had roles in movies such as Disaster Movie and Deep in the Valley. In 2010, Kardashian, along with her sisters Kourtney and Khlo√©, released an autobiography, Kardashian Konfidential, and plan to launch their own fashion line.

3 Responses to “One Kim Kardashian Is Enough, Thank You”

  1. “One of those pop culture refuseniks”? A fascinating epithet, even if only casually thrown, yet in a forum purportedly devoted to information! Let’s get something straight here: “pop culture” almost by definition consists of information obtained at no cost (“hard to avoid”). I haven’t had to work to know that there’s a Kim Kardashian out there. And I’m pretty sure she has some connection to one of OJ’s defense team (offspring?). I was unaware of the celebrity status of her butt. Perhaps that’s a datum that would have required “research.” But the mere fact that I do not read People magazine or watch television does not mean that my choices of sources of information and news are made in protest.

    The legal aspect is endlessly confusing. Presumably, Ms. Molinaro’s person has a similar attribute. It’s hers. She’s not “appropriating” it. Arguably, she’s imitating Ms. Kardashian. But how can the context, a television commercial, be viewed otherwise than entailing a tacit admission that the performance is only an imitation? Were the real Ms. Kardashian really promoting Old Navy, don’t you think they’d say so?

  2. Hi Dean.

    Well, on the “refusenik” issue, my tongue was in my cheek, but there are plenty of ivory tower denizens who proudly and purposefully avoid all information about the Kim Kardashians and Katy Perrys of our society.

    “Endlessly confusing” is as good a description of the legal issue as any I could offer. Plenty of my IP colleagues disagree with me here. However, I would differ from you that an endorsement generally would be explicit – indeed, in many many TV commercials, the celebrity simply appears and you are supposed to be sufficiently clued in to identify him or her. (These sorts of ads are not aimed at the refuseniks…)

    I believe the Old Navy ad probably had the intent — and more importantly, the effect — of making many viewers believe Kardashian endorsed the retailer. If so, I think both under current law and under my view of the correct outcome, she wins. There is still plenty of space for Ms. Molinaro to appear in ads that don’t intentionally maximize her resemblance to a very famous celebrity.

  3. After a long delay before seeing your reply, a mild retort, respecting to some extent the reason this stuff is so baffling. First, even those who purposefully avoid Katy Perry and the rest must know who they are in order to avoid them. My point about pop culture is that you can avoid all of the mainstream media–as I do, for example–yet still be perfectly aware of these folks, precisely because they comprise pop culture. Second, I think you mean, “are assumed to be sufficiently clued in.” Otherwise, your argument would fail. The law, I gather, doesn’t care who’s clued in and who isn’t. If there is confusion caused by Ms. Molinari’s imitation of Ms. Kardashian (or some respective sub-part thereof), then Ms. K. wins, as you suggest. But if those confused should have known better…