Earlier this year, Ariana Grande’s legal entourage filed an action against Forever 21 after the clothing giant failed to secure her consent to use her image. Forever 21 have been seen to disregard copy right laws completely and as a result, are now likely to end up footing a bill worth £ 8.2 million.
Forever 21 entered into talks with pop singer Ariana Grande which involved establishing a sponsorship deal in December 2018. This was seen as an attempt to become a beneficiary of her increased popularity following the release of her album ‘Thank you, next’. However, she was not swayed by the offer to be undesirable and pulled out of negotiations.
The failure to secure this endorsement capped a dreadful year for Forever 21, who face potential bankruptcy from falling sales revenues.
Nevertheless, in early 2019 with no contract in place, Forever 21 circulated adverts on their social media pages of a lookalike model wearing similar clothing, and make-up to Ariana Grande. She even struck ‘trademark’ Ariana Grande poses that was reminiscent of her ‘7 Rings’ music video. Even more daringly, they used the singer’s song in these promotional videos. This led the 26 year old to start legal action - undertaken by lawyer Daniel Petrocelli.
Ariana Grande’s legal team are arguing that Forever 21 appropriated her ‘name, likeness and other intellectual property to promote their brand for free’. The claim includes allegations of false endorsement, copyright infringement and a right to publicity violation. It is being claimed that this violation should amass to over $10 million in compensation for the singer, who reportedly has a strong case.
Ariana Grande has sued under the Lanham Act, California’s right-of-publicity law, and California common law. The Lanham Act is the primary statute regarding trademarks in the United States, prohibiting trademark infringement and false endorsement. By suing under the Lanham Act, Grande is intending to show that Forever 21 used her image and personality to mislead consumers into believing that the singer approved and co-operated. This will strengthen Grande’s case against the company and make it harder for them to argue a defence centred on freedom of speech.
Violations of the Right to Publicity law (a statute that protects against the use of a person’s identity to advertise without their consent), are determined through a three-step test. If all three questions are answered ‘yes,’ there has been a breach of the law:
For the first question, the answer could arguably be ‘yes.’ Under the wording of the legislation, the photograph in the advert must be ‘readily identifiable’ for a person to ‘reasonably determine’ that the model in the picture was of resemblance to Grande. Based on the adverts, which show a model bearing an uncanny resemblance to Grande, dressed in similar accessories and jewellery, it is easy to spot the similarity between the model in the picture with Grande. This is further shown by the caption of ‘Gee Thanks, just bought it’, the lyrical reference to Grande’s song ‘7 Rings.’
Forever 21 had already been alerted to the unlawful use of Grande’s image dating back to February 2019 by her lawyers but failed to remove all the content that was accused of using Grande’s image despite the request. In this case, it can be argued that they did indeed ''know’ the use of Ariana’s identity was wrong and illegal further making a case for the ‘yes’ answer.
As for the second and third questions, it is likely to be ‘yes’ to both. Ariana Grande was used for online advertising and posters that the shop used. A commercial purpose can also be established. Ariana Grande is a worldwide icon, especially popular with young female teenagers and adults. This is also the target audience of Forever 21 which suggests a link between Grande’s identity and the possibility of capturing the teenage and young adult market to boost sales for the company, especially when it is struggling with money problems. Given that all 3 questions can be answered with a ‘yes’, it seems likely that there has been a violation of her right to publicity.
Grande's action comes on the heels of a similar case brought about by Kim Kardashian earlier this year against fellow fast fashion retailer Missguided. Kim Kardashian stated that the Missguided website contains “entire pages that are devoted solely to the sale of clothing inspired by [me]”. Her complaint stated that users were prompted to “click a 'Shop Kim K' link, where they can buy clothing copied from Kardashian’s prior looks”. Missguided failed to defend themselves and Kim Kardashian was awarded $2.7 million in damages.
This also seems like a case of a repeat offender as Forever 21 have, in the past, been accused of imitating merchandise from global names such as Frank Ocean, Tupac Shakur and Kanye West.
It is certain Grande’s attack against Forever 21 will not be the last in a line of right-of-publicity actions against fast fashion retailers. As for Forever 21, maybe next time their sponsorship offer is declined, they should just think ‘Thank you, next’.