June 26, 2014 9:48am PT by Eriq Gardner
Halle Berry Lawsuit: Any Such Thing as a Free Celebrity Gift?
A lawsuit brought by Halle Berry is now wading into the topic of celebrities being gifted luxury items. Surely, most people would love to get their hands on designer clothing, expensive electronics and other goods for no cost, but maybe such things are not free after all.
The Extant star is suing an Italian company called Toywatch S.p.A. and its brand agents. Berry contends that the defendants have violated her publicity and privacy rights, trademark and slogan by using her name and image to advertise and sell watches. The actress states in her complaint she wouldn't "voluntarily appear in print or other media for a company or product unless she carefully selects and believes in the company and product" and unless she is compensated appropriately.
And the defense?
While it's too early in the case to zero in on Toywatch's core arguments, one subject has come up in the midst of a discovery process that has seen Berry's managers, publicists, stylists and personal assistants giving depositions. It concerns so-called "trade-out agreements," perhaps better known as barter arrangements.
Berry's lawyers admit that Berry often receives clothing and accessories from various designers but says they are no more than gifts. "In fact, [Berry] often does not wear them and instead donates them to charity," they wrote in a statement to a California federal judge on Wednesday.
But the defendants' lawyers aren't satisfied, having served at least 15 subpoenas on Berry for production of documents on the topic of these "gifts," all seemingly in advance of a novel argument.
"To prove that Defendants violated her right of publicity, Plaintiff must prove that her likeness was used without her consent," say the defendants in court documents. "However, if Plaintiff has a history of accepting merchandise from individuals whom she knows are employed by marketing agencies, for example, it is likely that Plaintiff consented to the use of her image when she accepted the subject watch."
Berry's lawyers see this as ludicrous.
"Such items are gifts and no terms are attached to Plaintiff’s receipt of any of these gifts," plaintiffs' lawyers emphasize. "Plaintiff’s acceptance or use of such gifts in no way constitutes Plaintiff’s consent or authorization to the designer to use images of Plaintiff wearing the items in the designer’s marketing, advertising or promotional materials."
In some respects, the dispute is reminiscent of a lawsuit brought by Shirley Jones, star of TV's The Partridge Family, against Corbis over the licensing of red-carpet images. A judge ruled that stars give implied consent to use their publicity rights in such situations, knowing that photographers will be present. The ruling was later affirmed by an appeals court.
The possible distinguishing factor in this case, though, might be what celebrities understand about the famous celebrity gift lounge. Which is why the parties in Berry's lawsuit against Toywatch have begun zeroing in on the terms, if any, of items handed to her. In the meantime, celebrities might wish to begin looking a gift horse in the mouth.