The defense in Woody Allen's $10 million publicity rights case against a clothing company appears to be going really “Bananas,” with American Apparel arguing that it used his image to “artistically express” its CEO's thoughts on “media sensationalism.”

“Those artistic expressions contained both parody speech as well as a social statement on the harm careless members of the media can inflict upon people while simultaneously obscuring their entire collection of professional work,” the company says in a pretrial memorandum.

Allen sued American Apparel in March 2008 for “blatant misappropriation” of his likeness in a billboard advertising campaign. The billboard -- a departure from the fashion house's usual racy advertising -- featured a still photo of Allen dressed as a Hasidic Jew from his Oscar-winning film “Annie Hall” and Yiddish text meaning “the holy rebbe.”

Trial in the case is set for May 18 and, in the pretrial brief, American Apparel's attorneys have reached new heights of chutzpah by portraying the billboard as a constitutionally protected expression of CEO Dov Charney's “thoughts, perceptions and comments” on matters that were “highly personal” to him “as well as socially pertinent and newsworthy.”

According to the memo, Allen's character in “'Annie Hall' felt self-conscious about being misperceived by the title character's family. “Similarly,” it continues, alluding to the disclosure of Allen's affair with Soon-Yi Previn, “Plaintiff himself had been the subject [of] public criticism and media sensationalism based upon misperceptions of Plaintiff and his personal life.”

Attorneys Stuart P. Slotnick and Kristi A. Davidson then proceed to draw a tenuous parallel with Charney, who has been accused by employees and others of bizarre sexual behavior in the workplace. Charney, the brief says, used the “Annie Hall” image to

express his frustration [at] being vilified by the press (much as Plaintiff was) and ... commence a dialogue on these issues as well as convey the message that media sensationalism too frequently overshadows the content of an individual's creative work. This is quintessential speech protected by the First Amendment.

Under U.S. Supreme Court precedent, speech is protectible as parody if it “reasonably could be perceived as commenting on the original or criticizing it, to some degree.” But to say a viewer of the American Apparel ad would reasonably perceive it as commenting on media sensationalism is quintessential poppycock.

For one thing, at the time “Annie Hall” was released in 1977, Allen's reputation had yet to be sullied by the affair with Previn, which caused his estrangement from her mother, actress Mia Farrow, and a custody dispute over their children. Why didn't Charney express himself by using an image from one of Allen's post-scandal movies?

When Allen filed his suit, moreover, American Apparel provided a very different interpretation of the ad. A spokesperson said it meant that “Woody Allen is our spiritual leader.”

Ironically, the defense hasn't been shy about trying to exploit the Soon-Yi scandal to mitigate any possible damages. “Mr. Allen's professional career and the demand for his celebrity endorsement has been adversely affected by the significant bad press Mr. Allen has received since his relationship with Ms. Previn was discovered,” it said in another brief.

Allen filed a motion in limine this week seeking to bar any testimony about “the events surrounding the 1992 child custody dispute and personal life of Mr. Allen and his family.” American Apparel's witness list includes both Previn and Farrow.

Charney also twisted the First Amendment as part of a fake arbitration of a sexual harassment case against him that was aborted when plaintiff's counsel did not show up. In a press release designed to misrepresent that he had defeated the case, he announced, “I am pleased that we have been able to bring clarity to the role of the First Amendment in the American workplace.”

By Matthew Heller
5/5/09