Kylie and Kendall Jenner Don’t Know Wrong from Rights
Earlier this year, Kylie Jenner tried to register a U.S. trademark for “Kylie” as a brand for her celebrity and her branded goods. For some reason, she or her legal counsel neglected to first find out if that name/brand was available for trademark registration in the trademark classes Kylie sought. It wasn’t.
As early as 2006, several “Kylie” registrations had been obtained by superstar musician Kylie Minogue, in the U.S. and other countries, for many of the same goods and services in which Kylie Jenner wanted to register.
Miss Minogue didn’t take too kindly either to Kylie Jenner’s filing or to Kylie Jenner herself. She referred to Ms. Jenner in the press as a “secondary reality television personality” prone to “photographic exhibitionism and controversial posts”.
Because of Ms. Minogue’s senior trademark rights, the U.S. Trademark Office threw out Kylie Jenner’s trademark application and she couldn’t use her first name as a trademark for her desired goods and services. You can read the blog I wrote about that fiasco here.
Ms. Jenner’s apparently a slow learner. This time, instead of violating trademark rights, Kylie, with an assist from Kendall, violated copyrights. The Jenner sisters decided to produce T-shirts for their “Kendall & Kylie” clothing line. The T-shirts consist of iconic photos and other images of famous musicians, such as Notorious BIG, Tupac Shakur, Ozzy Osbourne, Led Zeppelin, and Jim Morrison, among others.
What did Kylie and Kendall do? They took those iconic images, superimposed their faces on them and plastered them on the front of T-shirts they sold for $125 each
With didn’t Kylie and Kendall do? Obtain the rights they needed to use those pictures and images of famous people on those t-shirts.
I don’t know if they first consulted with an experienced copyright lawyer about their t-shirt design, but if they had, they would likely have been told that each image and photograph was owned by someone. It could be the photographer or artist who created it, or a company, like a record label, for whom they were created.
Another set of rights that the Jenners needed to obtain were rights of publicity. Generally, a public figure owns the rights to their name, face, and likeness. Consequently, someone who wants to use their name, face or likeness needs to get permission from the public figure. In some states, like California, those rights are descendible after the public figure’s death. So, if Biggie or Tupac were domiciled in California, Kylie and Kendall would need to get permission from their estate.
It’s clear that some or all of the involved icons (or their heirs) didn’t want themselves associated with the Jenners (certainly not a novel concern). They weren’t happy with the idea of Kylie and Kendall plastering their faces over those of the iconic musicians. They also didn’t want the implied endorsement caused by the Jenners and their clothing line.
The backlash and consequences were immediate, unvarnished and potentially expensive. Biggie’s mom called their use of his image “disrespectful, disgusting, and exploitation at its worst!!!” Sharon Osbourne suggested that Kylie and Kendall “haven’t earned the right to put (their) face with musical icons. Stick to what you know…lip gloss.” Several other celebs also excoriated the Jenners, calling them out for their seeming lack of intelligence, common sense and for their self-aggrandizement.
Kylie and Kendall offered identical apologies on social media (I guess they share a publicist as well their sensibility) and pulled the shirts from sale. But, it was too little, too late.
They’ve also received cease-and-desist letters from some of the owners of those rights. The letters seek damages for the Jenner sisters’ multiple infringements. Those infringed don’t have to prove actual damages. They instead might be entitled to what is called “statutory damages”. For intentional copyright infringement, this can be as much as $150,000 per infringement. Multiply that by the number of pictures and images Kylie and Kendall infringed, and we’re looking at some potentially serious money here.
This is a textbook example of “she who doesn’t learn from history is doomed to repeat it.” That’s now two IP rights strikes against Kylie and Kendall. One more strike and they could be out.
Just Sayin’ . . . TM