American Apparel goes back to the dressing room in Woody Allen billboard case

By Eriq Gardner

Time for an update on Woody Allen's lawsuit against clothing retail chain American Apparel for using an unauthorized image of the actor from "Annie Hall" on a billboard.

Since Woody sued the company last year for $10 million, the case has taken some bizarre twists, including a legal strategy by the defendant that certainly ranks up there in the annals of chutzpah. Last month, we reported that American Apparel's lawyer planned to make an issue of Allen's faithlessness to actress Mia Farrow by, among other things, demanding nude photos of Allen's wife, Soon-Yi Previn.

It now appears as though American Apparel realizes it put its shirt on backwards.

In a pretrial memorandum submitted in New York District Court on Monday, the company is now singing the praises of Allen, saying he's basically a role model for others who have been the subject of media sensationalism and criticism. The memo draws a direct connection between Allen's self-conscious character in "Annie Hall" and the media pitfalls suffered by American Apparel CEO Dov Charney:

"The character portrayed by Mr. Allen in the film 'Annie Hall' felt self-conscious about aspects of his personality that he believed, rightly or wrongly, were being misperceived by Annie Hall's family. Similarly, Plaintiff himself had been the subject public criticism and media sensationalism based upon misperceptions of Plaintiff and his personal life. Mr. Charney, himself the target of unflattering and inaccurate media attention and alleged scandal, used the Annie Hall images to pictorially depict, and comment upon, these parallels..."

The memo goes on to assert that the plaintiff has a First Amendment free speech right to make use of the image from "Annie Hall."

A cynic might point to other recent developments in the case for the turnabout, including a judge's ruling that Allen wouldn't have to justify why he found the original billboard objectionable and Allen's declaration that he would fight against having Farrow and Soon-Yi testify as witnesses. However, the plaintiff foreshadowed this new development a couple weeks ago by leaking an internal company memo that states, "Dov (and everyone else at the company) LOVES Woody Allen."

The real question is whether this new legal strategy will fly.

At OnPoint News, Matthew Heller calls it "quintessential poppycock," asking why American Apparel didn't use one of Allen's post-scandal movies to make its case about media sensationalism, but we think Charney's huge artistic stretch is beside the point.

In terms of a legal defense, arguing that American Apparel had a fair use right to use the image makes a little more sense than arguing that scandals involving Allen had left his publicity rights worthless. One might even go so far as to draw similarities between American Apparel's new defense and the justification used by street artist Shepard Fairey for using an Associated Press photo to create his Barack Obama poster. We still think that American Apparel has about 100 miles to climb to show that it was entitled to its commercial use of Woody Allen, but at least by moving the court into an examination over what's permitted by "fair use," the defendant has thrown its fate into one of the murkiest areas of copyright law.

To quote Woody Allen's Alvy Singer, "Life is divided into the horrible and the miserable." In a sense, American Apparel just went from horrible to miserable.