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“Keep My Name Out Your Mouth”: Ariana Grande Files Suit Against Forever 21

11/8/19

“Keep My Name Out Your Mouth”: Ariana Grande Files Suit Against Forever 21

By Layla Husen

Ariana Grande is once again making headlines. This time it is not for her short-lived relationship with Pete Davidson, nor for another bop breaking records in the chart, but for her ten million dollar lawsuit filed against clothing company, Forever 21.[2]

According to the complaint, which was filed on September 2, 2019 in the United States District Court for the Central District of California, Grande alleges copyright and trademark infringement by Forever 21, Inc. and Riley Rose LLC.[3] The complaint alleges that the defendants “willfully used Ms. Grande’s name, image, likeness, and music without authorization to generate renewed interest in their brand and social media platforms, and to elicit sales of their products.”[4] As the complaint asserts, “Ms. Grande’s control over the use of her name, image, likeness, and intellectual property in promoting third-party products and services is critical to safeguard her reputation, and to prevent the public from being misled into believing that she has associated herself with a product or service that she does not…endorse.”[5]

The complaint alleges California law violations of commercial misappropriation, the common law right of publicity, and common law trademark infringement as well as federal law violations of false endorsement, trademark infringement, and copyright infringement.[6]

The complaint alleges that Forever 21 sought an endorsement deal with Grande, but the “deal never came to fruition because the amounts that Forever 21 offered to pay…were insufficient for an artist of her stature.”[7] Included within the complaint are captures of Forever 21 social media posts that include pictures from Grande’s music videos for her hit singles, Thank U, Next and 7 Rings.[8] According to the complaint, Forever 21 went further and hired a model who looked “strikingly similar” to Grande, wore a similar hairstyle and outfit as Grande did in the music video for 7 Rings, and posed with the “7” from Grande’s video.[9] Moreover, the complaint alleges instances where Forever 21 also used audio and lyrics from 7 Rings.[10]

The side-by-side stills incorporated in the complaint of the Forever 21 model and Ariana Grande herself are most persuasive. The model is seen wearing pink furry balls with dangling jewels atop her head like animal ears.[11] While Grande is well known for often being photographed wearing cat ears, Grande wore extremely similar pink furry balls topped with glittering jewels in 7 Rings.[12] Based on Forever 21’s alleged caption, the image can hardly be chalked up to a coincidence. Captioned with the words, “Gee thanks, just bought it,” Forever 21 was clearly alluding to Grande’s 7 Rings lyrics, “You like my hair? Gee thanks; just bought it.”[13]

In a search for dissimilarities between the images, it is noticeable that in 7 Rings, Grande was wearing what looked like a white sports bra, whereas in the Forever 21 marketing materials, the model was wearing a pink tube top.[14] One could also point out that Grande’s white socks were tucked into pink high-heeled boots, but the Forever 21 model had white socks with pink strappy high-heeled stilettos.[15] While the dissimilarities are perceptible, the overall similarity between the images is unmistakable—after all, purple camouflage pants are not a common household staple in 2019, but yet the Forever 21 model is seen wearing a pair that are seemingly identical to the ones Grande dons in the 7 Rings video.[16]

Based on the images included in the complaint, it seems that Grande has sufficient evidence to meet the elements of each count asserted in the complaint. Count one of the complaint, commercial misappropriation, stems from Cal. Civ. Code § 3344.[17] Under the California statute, “any person who knowingly uses another’s name, voice, signature, photograph, or likeness in any manner…for purposes of advertising or selling, or soliciting purchases…without such person’s prior consent” is liable.[18] Count two, the common law right of publicity violation, is a cause of action that must establish four elements to succeed: “(1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.”[19] Both causes of action seem viable based on the allegations in Grande’s complaint.

Forever 21 may try to dismiss Grande’s lawsuit under Cal. Civ. Proc. Code § 425.16 which allows a special motion to strike a strategic lawsuit against public participation.[20] The statute, commonly known as the anti-SLAPP statute, is intended to discourage suits that are “brought to deter common citizens from exercising their political or legal rights or to punish them for doing so.”[21] For an anti-SLAPP motion to prevail, the court must find that the cause of action arises from an act in furtherance of free speech and that it is not probable that the plaintiff will prevail on the claim.[22] While advertisements would qualify for first amendment protection, the court will likely find that the allegations made in Grande’s complaint were “legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by plaintiff is credited.”[23]

Defenses based on transformative use would also likely fail. The transformative use defense is a balancing test between First Amendment and right of publicity interests.[24] The test is “whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.”[25] When Vanna White sued Samsung over the use of a robot in a gown playing a role similar to Vanna White’s well-known role on Wheel of Fortune in a Samsung commercial, the ninth circuit held that the commercial constituted a violation of White’s right to publicity sufficient to grant summary judgment because Samsung appropriated and commercially exploited White’s identity.[26] Based on the allegations in Grande’s complaint, no transformative or creative elements were present in Forever 21’s marketing materials. Forever 21’s alleged use of Grande’s likeness does not seem to have been a creative outlet, but, similar to Samsung’s use of the robot in White, an attempt to use Grande’s likeness for profit, the exact form of economic and commercial interest that the right of publicity seeks to protect.[27]

If Grande can substantiate the factual allegations in her complaint with evidence at trial, she could likely prevail under count three of her complaint, false endorsement, as well. Count three asserts a violation of the Lanham Act, 15 U.S.C. § 1125(a).[28] A false endorsement claim is asserted when the use of a trademark, trade dress, or public figure’s “persona, likeness, or other uniquely distinguishing characteristic” causes confusion regarding affiliations and endorsements.[29] When Johnny Carson sued a portable toilet company because the company’s name was the same as Carson’s The Tonight Show introduction, “Here’s Johnny,” the sixth circuit did not find that the portable toilet company’s use presented “a likelihood of confusion, mistake, or deception” because it was not likely that the public believed Carson “sponsored or otherwise approved” the use.[30] Unlike in Carson, considering the “uncanny” resemblance between Grande and the Forever 21 model, Forever 21’s social media captions that allude to Grande’s lyrics, and Grande’s other brand affiliations, a reasonable person could mistakenly believe that Grande was affiliated with Forever 21.[31]

Grande’s claims of trademark infringement also seem viable. Count four asserts a violation of the Lanham Act, 15 U.S.C. § 1114(1), based on Grande’s trademarks: ARIANA GRANDE and ARIANA GRANDE THANK U, NEXT.[32] Grande should prevail on count four if she can prove that she had a “valid, protectable mark” and Forever 21’s use of the mark is “likely to cause consumer confusion.”[33] A valid and protectable mark is “distinctive and non-functional.”[34] Both of Grande’s trademarks fit the description, and for the reasons aforementioned, it seems probable that a reasonable consumer would be confused by Forever 21’s usage of Grande’s likeness and trademarks. Count five of the complaint, a cause of action based on common law trademark infringement, is similar.[35] To prevail, Grande would have to prove “ownership interest” in the marks as well as “the likelihood of the infringing mark[s] being confused” with Grande’s marks.[36] Thus, Grande could also meet the burdens of count five’s cause of action.

Count six also asserts a violation of the Copyright Act, 17 U.S.C. § 501, based on Forever 21’s use of Grande lyrics, images, and audiovisual clips.[37] For the final count, Grande must prove “ownership of the allegedly infringed work” and that Forever 21 copied the protected elements of the work.[38] If Grande can prove the allegations set forth in her complaint, she would likely succeed on count six as well.

With the knowledge that many civil lawsuits settle before trial, Grande may not see her day in court. But, considering the high-profile nature of both the plaintiffs and defendants in this lawsuit, a public trial may be in Grande’s future. Moreover, given that Forever 21 has been accused of plagiarizing independent designers and copying other retailer’s designs in the past, perhaps punitive damages are warranted—an act that may be the final nail in the company’s coffin.[39] Regardless, it seems clear that Ariana Grande has “one less problem” without Forever 21.[40]

By Layla Hussen*
Edited by Jessica Gottsacker