In Darryl McPherson v. Kith Retail, LLC d/b/a Kith NYC, Index No. 503083/2024 (N.Y. Sup.), the spotlight is on the intersection of visual art, fashion brand campaigns, and the right of publicity. 

Plaintiff’s Claim

The plaintiff, Darryl McPherson (“McPherson”), arguably the subject of a painting depicting a real photograph of himself, alleges that neither the portrait painter, Samuel Olayombo (“Olayombo”), nor Kith NYC (“Kith”) requested permission to use his image, portrait, or likeness for Kith’s 2023 Black History Month “Artist Series” brand campaign.

Olayombo’s painting depicting McPherson is titled Slum Flower Titus.  A true and correct copy of Slum Flower Titus, as identified in McPherson’s complaint is reproduced below[1].

A true and correct copy of the original photograph of McPherson taken during Afropunk Festival 2018, as identified in McPherson’s complaint is reproduced below[2].

Notably, McPherson’s complaint does not name Olayombo as a defendant, however, McPherson alleges that the Slum Flower Titus painting is a depiction of a photograph of McPherson.  A true and correct copy of both Olayombo’s Slum Flower Titus painting and the original photograph of McPherson side-by-side may help illustrate McPherson’s point[3].

Pursuant to New York Civil Rights Law §§ 50–51, McPherson asserts that Kith used Olayombo’s painting of McPherson’s portrait, image, and likeness on apparel (including $65 T-shirts and $195 crewneck sweaters), shopping bags, and promotional materials without his consent, violating McPherson’s right of publicity.  McPherson argues that Kith’s use of his likeness was purely commercial and not ancillary to promoting exhibition of Olayombo’s Slum Flower Titus painting.  McPherson suggests Kith’s use was entirely aimed at profiting from his image as part of their brand activism during Black History Month, and that he neither received compensation nor was consulted about his involvement.

Kith's Defense

Unsurprisingly, Kith’s answer to McPherson’s complaint denies any wrongdoing and raises several affirmative defenses.  One defense Kith raises is that its use of Olayombo’s Slum Flower Titus is protected by the First Amendment as artistic expression, and thus, immune from civil liability.  To support this defense Kith maintains that although it did not seek McPherson's permission to use Olayombo’s painting in its campaign, it did not have to seek any such permission because Slum Flower Titus is not a portrait of McPherson in the first instance and use of Slum Flower Titus in its brand campaign was to highlight Black artists, not profit from McPherson’s likeness.  Put another way, Kith is creating a dispute as to whether McPherson is recognizable as the subject of Olayombo’s Slum Flower Titus painting, while also reframing the purpose of its use as non-commercial.  Kith’s First Amendment defense boils down to a question of recognizability and commercial use, where Kith takes the position that the Slum Flower Titus painting is the creative work of Olayombo and insists that its campaign aimed to spotlight Black artists rather than exploit McPherson’s likeness for profit.

Recognizable Likeness

The question of recognizability has been addressed by New York courts several times, and many of those courts have found that “recognizable likeness is generally a jury question unless plaintiff cannot be identified because of the limited subject matter revealed in the photograph or the quality of the image[,] but [b]efore a jury may be permitted to decide the issue, […], plaintiff must satisfy the court that the person in the photograph is capable of being identified from the advertisement alone and that plaintiff has been so identified.”  See Cohen v. Herbal Concepts, Inc., 63 N.Y.2d 379, 384 (1984) (where the faces of the claimants were not even visible in the portrait, identifying features such as their hair, bone structure, body contours, stature and posture were all factors which led to the court’s conclusion “that a jury could find that someone familiar with the persons in the photograph could identify them by looking at the advertisement.”); See also Shamsky v. Garan, Inc., 167 Misc.2d 149, 155 (Sup. Ct. N.Y. Cty. July 26, 1995) (where the 1969 New York Mets baseball team photo depicts all of its players directly facing the camera and wearing their identifying Mets uniform, the court applied the standard in Cohen finding plaintiffs were public figures identifiable to legions of baseball fans, and thus, “the issue of individual identifiability can be resolved at the damage trial.”)  Applying the Cohen standard, the New York Court of Appeals has also found a videogame character is not recognizable as a plaintiff when the videogame character is a generic artistic depiction without particular identifying physical characteristics of the plaintiff.  See Lohan v. Take-Two Interactive Software, Inc., 31 N.Y.3d 111, 122-123 (2018).  Here, on its motion to dismiss, Kith did not convince the court that the person in Olayombo’s Slum Titus Flower is not capable of being identified from Kith’s 2023 Black History Month “Artist Series” collection of merchandise featuring the painting.[4]  In its ruling, the court found a jury would be able to determine that Olayombo’s Slum Flower Titus painting used in Kith’s apparel is a “close and purposeful resemblance to reality” of McPherson.  See Onassis v Christian Dior-N.Y., 122 Misc.2d 603, 611 (Sup Ct. N.Y. Cty. Jan. 11, 1984)

Commercial Use

The question of commercial use has also been addressed by New York courts, and construing the statutory term “advertising purposes” used in New York Civil Rights Law §§ 50–51 liberally, courts typically find a “name, portrait or picture is used “for advertising purposes” if it appears in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service.”  See Beverley v. Choices Women’s Medical Center, Inc., 78 N.Y.2d 745, 751 (1991) (citation omitted) (finding that a calendar distributed by a for-profit medical center, which contained glowing endorsements of services provided by the center, qualified as an “advertising medium” and “promotional publication”. Further, where the plaintiff was identified in the calendar as a medical doctor, and the services being promoted by the center were its medical services, the plaintiff's “name, photo and professional title were central to and cannot be deemed merely incidental to the calendar's unmistakable commercial message and purpose.”)  The court in Beverley added that the theme of the calendar, namely the history of the women's movement, may have been a message of public interest did not make the calendar a matter of “newsworthiness/public interest” protected by the First Amendment. Here, Kith is a for-profit clothing and apparel merchandise business that annually sponsors a “Black History Month Artist Series promoting Black creatives whose works are incorporated into apparel displayed online and in Kith's physical locations and galleries.”  McPherson, 83 Misc.3d 1259(A), 2024 WL 3659591, at *5.  Both the terms of the license agreement Kith entered with Olayombo to use Slum Flower Titus in its apparel and their motion to dismiss brief state the purpose of the painting was the “commercial sale of the Artwork as part of a cultural celebration and commercial endeavor”.  Id. at *4.  The court was not persuaded by Kith’s First Amendment argument and denied its motion with respect to that defense.  Id. at *6.

Most of Kith’s other affirmative defenses in its answer were not briefed in its motion to dismiss and are not worth mention, however, McPherson’s failure to mitigate and prove damages was a huge part of Kith’s brief.  Kith convinced the court that because they no longer display or sell the merchandise reflecting Slum Flower Titus and McPherson’s complaint fails to plead Kith had any knowledge of its nonconsensual use, equitable and punitive damages are not available for McPherson to recover – only compensatory damages or “the fair market value of the use for the purposes of trade of McPherson’s face, name and reputation”.  Id. at *5.

What’s Next?

This case raises crucial questions about the balance between artistic expression and an individual's right to control the commercial use of their likeness.  As the legal battle unfolds, it will test the limits of New York's right of publicity laws and how courts navigate the intersection of art, commerce, and personal identity.

The case is set to proceed through discovery. Stay tuned for further updates on the story of this developing case.
 

[1] Darryl McPherson v. Kith Retail, LLC d/b/a Kith NYC, Index No. 503083/2024 (N.Y. Sup.), NYSCEF DOC. NO. 1 at 10.

[2] Darryl McPherson v. Kith Retail, LLC d/b/a Kith NYC, Index No. 503083/2024 (N.Y. Sup.), NYSCEF DOC. NO. 1 at 8.

[3] Darryl McPherson v. Kith Retail, LLC d/b/a Kith NYC, Index No. 503083/2024 (N.Y. Sup.), NYSCEF DOC. NO. 1 at 11.

[4] McPherson v. Kith Retail, LLC, 83 Misc.3d 1259(A), 2024 WL 3659591, at *5 (Sup. Ct. Kings Cty. July 26, 2024)