10/15/19

Attorney-Client Privileged Communication

Ms. Sue Themal

Shining Stars Talent Management
2398 Avenue of Celebrity
Los Angeles, CA 33004

Re: Advice Regarding Ariana Venti Right of Publicity Jurisdiction

Dear Ms. Themal:

Ms. Venti should state her claim in either New York or California
jurisdiction. First, this is a misappropriation of likeness in California.
Second, it is a violation of right to privacy in New York.

In California one can recover for a misappropriation of likeness Cal. Civ.

Code § 3344. In New York one can recover for a violation of privacy rights
N.Y. Civ. Rights Law § 50.

A. Venti’s claim in California will be successful because her

likeness was misappropriated § 3344.

Venti’s claim will be successful because her likeness was

misappropriated under § 3344. This is because in Forever 17’s social media
photos, the model is wearing similar jewelry, shoes, hairstyle, and clothing
as Venti from her 7 Rings video. Furthermore, they used Venti’s lyrical
expression.

Section § 3344 states that misappropriation of likeness is “use of

another’s . . . [] likeness for . . . advertising or selling or soliciting purposes .
. . without consent” § 3344. This analysis assumes that Ms. Venti will satisfy
all elements but the “likeness” element of section § 3344.

“Likeness” is determined by looking at clothes and accessories the

look-alike is wearing, coloring of the clothes, and words associated with the
person or advertisement. In Kirby v. Sega America Inc., Kirby, a singer, said
that Sega America Inc. used her likeness by creating a video game character,
Ulala, similar to her. Kirby’s costumes “included platform shoes, . . .
brightly-colored form-fitting clothes and unitards, short pleated . . . skirts,
bare midriffs, cropped tops with words or a numeral written on the chest . . .
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a blue backpack, and red/pink hair” Kirby v. Sega America Inc., 144 Cal.
App. 4th 47, 51 (2006). Ulala was wearing “an almost entirely orange outfit
which includes a midriff-exposing top bearing the numeral ‘5,’ a mini-skirt .
. . [and] knee-high platform boots . . . hot pink hair . . . [and] a jetpack”
Kirby, 144 Cal. App. 4th at 52. Furthermore, her “‘signature’ lyrical
expression,” used in one of songs and music videos is ‘ooh la la’” Kirby,
144 Cal. App. 4th at 51. The court found there were sufficient facts to show
that Kirby’s likeness was used in the video game.

Like in Kirby, Venti’s likeness was used in the Forever 17 social

media advertisements through the models, their clothing, and lyrical
expression that was used as a caption. Some of the similarities in clothing
were jewelry, hairstyles, outfits, and shoes. In Forever 17’s photos, the
model is shown wearing a pink crop-top, pink camouflage jeans, a white belt
with a silver buckle, white socks, pink high-heels, a silver beaded necklace,
and silver earrings. Additionally, the model’s brown hair is in a high
ponytail and has a headband with two pink balls that have silver beaded
accents. The few differences on the model include: a strapless crop-top,
studded earrings instead of hoops, and lack of a white jacket. Furthermore,
the caption used on the advertisement, “[g]ee thanks, just bought it,” is a
lyrical expression from Venti’s song.

Thus, Forever 17 used Venti’s likeness and the claim will be

successful in California. The model in the advertisements is similar in all-
around appearance to Venti from her 7 Rings music video and uses her
lyrics. This misappropriated her likeness.

B. Venti’s claim in New York will be successful due to her right to

privacy being violated § 50.

Venti’s claim in New York will be successful. Her right to privacy

was violated. This is because the model portrayed in the advertisement is an
obvious representation of Venti and can be easily identified. Additionally,
the clothes that are worn by the model specifically pertain to Venti’s music
video.

N.Y. Civ. Rights Law § 50, right of privacy statute, states that “any
person whose name, portrait, picture or voice is used within this state for
advertising purposes or for the purposes of trade without the written
consent.” The elements of this statute are (1) the “picture or portrait”
element, (2) “it is used for advertising purposes and for purposes of trade”
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(3) “it was without written consent” § 50. This analysis assumes Ms. Venti
will satisfy all elements but the “picture” or “portrait” element. Furthermore,
N.Y. Civ. Rights Law § 51 states that “if picture . . . or portrait is used,” a
person may pursue legal action § 51.

A person’s “picture” or “portrait” is used when the model representing

them is an obvious representation or when the person’s clothing is similar to
what they normally wear. In Onassis v. Christian Dior-N.Y., Inc., Dior
wanted to use photos of Jaqueline Kennedy Onassis for an advertisement
they were doing, but never asked her. Instead, they used Barbara Reynolds,
“a secretary who bears a remarkable resemblance to plaintiff” Onassis v.
Christian Dior-N.Y., Inc., 122 Misc. 2d 603, 605 (N.Y. Sup. Ct. 1984).
There were many physical similarities between Onassis and Reynolds. The
advertisement left no room for there to be confusion as to who Reynolds was
representing. Onassis said that “that Reynolds’ picture cause[d] her to be
identified” Onassis, 122 Misc. 2d at 604. In regard to their similarities, it is
stated that “with the appropriate makeup, hairdo, accessories and expression
. . . she is the very image of [Onassis]” Onassis, 122 Misc. 2d at 613. The
court found that Dior used Onassis’s “picture” or “portrait.” In contrast, in
Lohan v. Take-Two Interactive Software, Inc., a video game contained a
character, “Lacey Jones,” who Lohan believed was “her look-alike” Lohan
v. Take-Two Interactive Software, Inc., 97 N.E.3d 398, 392 (N.Y. 2018).
Two “looks” were in question to determine if they used Lohan’s “picture” or
“portrait.” One [is] . . . a blonde woman who is clad in denim shorts, a
fedora, necklaces, large sunglasses, and a white T-shirt . . . The second
contains . . . [a] woman [] depicted wearing a red bikini and bracelets”
Lohan, 97 N.E.3d at 392. The court found that Jonas was not recognizable as
Lohan and did not have any identifying features. Thus, her “picture” or
“portrait” was not used. Lohan, 97 N.E.3d at 395.

In New York, Venti’s “picture” or “portrait” is used because the

model in the Forever 17 photos is recognizable as Venti. Similar to Onassis
and in contrast to Lohan, one can assume who the model is leaves no
question as to who she is representing. She has features that make her easy
to identify, some being: her tan skin, facial structure, and size. Additionally,
in Forever 17’s photos, the model is shown wearing the same outfits as
Venti. Both are wearing: a pink crop-top, pink camouflage jeans, a white
belt with a silver buckle, white socks, pink high-heels, a silver beaded
necklace, and silver earrings. Additionally, the model’s brown hair is in a
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high ponytail and has a headband with two pink balls that have silver beaded
accents.

Venti’s claim In New York will be successful because Forever 17

used her “picture” or “portrait”. This is because the model has identifying
clothes and features to Venti from her music 7 Rings music video. Her right
to privacy was violated through the use of the model.

C. Venti may choose either jurisdiction to file her claim in New

York or California law.

Venti may choose either jurisdiction to file her claim because it will
be successful under New York and California law. Venti is easily
recognizable through her clothing and physical features.

Sincerely,

Associate 224

Client Advice Letter Rubric

(Please include this at the end of your submission;
make sure the formatting looks the same as the assignment sheet)

Note: I will put a check next to items that need improvement.

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Standards Standards Standards Standard Your score

Area of evaluation Exceeded Met Nearly Met Not Met

25 22.5 20 <17.5
Overall Structure
Uses an umbrella section before the CREACs
Each CREAC includes the parts of CREAC in order:
Conclusion, Rule, Explanation, Application,
Conclusion
Each CREAC fully explains the law before starting to
apply the law (e.g. use: CREEEAAAC rather than
CREAEAEAC)
Uses consistent order for roadmaps, topic sentences,
etc.
Uses accurate and consistent transitions for roadmaps,
topic sentences, etc.
Uses consistent legal terms of art throughout
Addresses only one main topic per paragraph
12 10.8 9.6 <8.4
Umbrella Section
Overall conclusion for the issue, plus clear roadmap of
conclusions on individual issues/elements
Umbrella rule states appropriate rule(s)
Umbrella rule quotes key language of rule(s)
No mention of client facts in umbrella rule (unless rule
paragraph requires assumptions/stipulations)
Accurate description of the rule(s)
Specific cites to authority for the rules
5 4.5 4 <3.5
Conclusion Paragraph for Each CREAC
Conclusions on element/issue/factor at hand
Clear roadmap of the subconclusions for that section
8 7.2 6.4 <5.6
Rule Paragraph for Each CREAC
Rule paragraph begins with and quotes the key
language of the rule
Accurate information about the rule
Rule focuses on the issue/element/factor
Rule paragraph describes general principles necessary
for reader to understand the main rule
No mention of client facts (unless rule paragraph
requires assumptions/stipulations)
Specific cites to authority for all rule sentences
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Standards Standards Standards Standard Your score

Area of evaluation Exceeded Met Nearly Met Not Met

16 14.4 12.8 <11.2

Explanation Section for Each CREAC
Each “E” paragraph begins with a topic sentence with a
theory/principle to explain the element/issue/factor that is
realistic, marketable, and helpful
Topic sentences connect to the issue/element/factor for the
CREAC
Topic sentences use appropriate transitions
“E” topic sentences describe all points necessary to analyze
the client’s situation
Case illustration (concrete facts, reasoning, and
holding/finding) of important authority to support each
topic sentence; use past tense
Case illustration focuses just on topic of the paragraph
Cases described accurately
Use cases that support topic sentence first; then show how
contrasting authority supports the topic sentence, too (if
applicable)
Transitions between case illustrations
Specific cites to the exact page(s) of authority that
support(s) your discussion of law (“pincites”)
No mention of client facts
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Standards Standards Standards Standard Your score

Area of evaluation Exceeded Met Nearly Met Not Met

16 14.4 12.8 <11.2

Application Section for Each CREAC
Conclusion on element/issue/factor to start application (one
sentence)
“A” topic sentences state correct conclusion about client
facts, connect to our main issue, and mirror key language of
the corresponding “E” theory
Sufficient specific, concrete facts from our case to support
application topic sentences
Facts described accurately
Facts stay focused on the topic for the CREAC and the topic
for the paragraph
Client facts analogized to/distinguished from precedent
using specific analogy and distinction (if applicable)
Bad facts raised/dealt with at end of “A” paragraph (if
necessary)
Counterarguments raised/rebutted in separate paragraph (if
necessary)
No new discussion of law in the “A” section (e.g. you have
only analogized/distinguished cases you have fully
discussed in the “E” section)
Final Conclusion for Each CREAC
Sum up subconclusions and state final conclusion for
the CREAC
2 1.8 1.6 <1.4
OVERALL CONCLUSION
Remind us of conclusions on individual CREACs
Overall conclusion for the issue
8 7.2 6.4 <5.6
BASIC WRITING/BLUEBOOKING
Concise, active writing (and no legalese)
Clear sentences (e.g. no misplaced modifiers,
inconsistent structure, comma, issues, or noun-pronoun
agreement issues)
Formal language (no colloquialisms or contractions)
Correct long statute cites (using LWR rule for format)
for first cite
Correct long case cites for first cite
Correct short statute cites thereafter
Correct short case cites thereafter
Correct use of id.
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Standards Standards Standards Standard Your score

Area of evaluation Exceeded Met Nearly Met Not Met

8 7.2 6.4 <5.6

PROFESSIONALISM
Correct anonymous ID number on submission and on
TWEN
Assignment lacks any information to identify the
author, including in the file name
Appropriately formatted headers
Correct font
Paragraphs single-spaced with indented first line only;
space after each paragraph
Free of typos
Follows all format requirements in the instruction sheet
Includes a copy of the grading rubric

Penalty for going over the word count

Penalty for lateness on this assignment

0
Total (out of 100)