April 23, 2013 10:00am PT by Eriq Gardner
Lionsgate: 'Mad Men' Opening Credits Protected by First Amendment
On the hit AMC series, Mad Men, the male ad executives led by Don Draper slowly come of age during a wave of feminine mystique. In early March, several weeks before the debut of the show's sixth season, producer Lionsgate faced a different sort of self-empowerment. Gita Hall May, a 79-year-old ex-fashion model, sued over the opening credits, which uses for one fleeting moment, her image from a Richard Avedon photo shot more than half a century ago.
Lionsgate is now attempting to kill the lawsuit, explaining the transformative value of Mad Men's opening credits and looking to a judge to protect it as quintessential free speech. The show's producer has filed an anti-SLAPP motion, meant to deter litigation aimed at interfering with First Amendment rights.
Among the papers filed is a declaration by Mad Men executive producer Scott Hornbacher, who reveals that the credits contain more than 40 period advertisements, including those from Herman Miller, IBM, American Airlines, Carling Black Label Beer, Van Heausen, Pan Am, TWA, Heinz, Lady Remington, Zippo and Smirnoff Vodka. Horbacher also submits a "storyboard" that depicts each step of the opening title sequence and cross-references the original advertisements.
May's lawsuit contends that because the producer never got her consent to use her image from an old Revlon ad, that her publicity rights were violated.
"Visible for barely more than one second, the image from the advertisement ... has been altered and combined with dozens of other creatively altered images also taken from period advertisements and with new creative elements to form a highly distinctive opening sequence that is as much creative expression as the content of the Series itself."
The production company isn't the first to be sued for violating someone else's publicity rights. Nor is it the first to put up a defense that's based on transformative fair use, an exception to an owner's intellectual property rights that has proven stubbornly resistant to guideposts. For example, the California Supreme Court once found that charcoal drawings of the Three Stooges weren't transformative, but later ruled that “villainous half-worm, half-human” caricatures of two musicians, Johnny and Edgar Winter, to be sufficiently transformative. Good luck figuring out the middle ground.
Lionsgate says it meets the test of being transformative.
In its anti-SLAPP motion (read in full here), the company has two goals. The first is to convince a judge that Mad Men opening credits arise from First Amendment activity. That gives Lionsgate an opportunity to brag about the "staggering 83 Emmy awards" that show has earned. The producer also cites critical praise and mentions the reaction that the title sequence has gotten from others: On TV Guide's list of television's Top 10 Title Sequences, discussed by college professors on the Internet and parodied by the E! Entertainment program The Soup. In short, it's art that has stimulated conversation.
The next goal is to show the judge that May can't demonstrate a probability of prevailing in the lawsuit because her claims are barred by the First Amendment.
Lionsgate cites the test from that Three Stooges case above (Comedy III Productions v. Gary Saderup) as being "whether the celebrity likeness is one of the 'raw materials' from which an original work is synthesized, or whether the depiction or imitation of a celebrity is the very sum and substance of the work in question."
Represented by attorney David Halberstadter at Katten Muchin Rosenman, the defendant says, "Rather clearly, the one-second glimpse in the opening sequence of the significantly altered and highly-stylized advertisement that included Plaintiff's likeness is nothing more than 'one of the 'raw materials' from which' the Series' opening sequence was synthesized. Indisputably, Plaintiff's likeness is not 'the very sum and substance of the work.'"
In supporting documents, Hornbacher gives more details about the creative efforts that went into the Mad Men opening credits. It was done for Lionsgate by a company called Imaginary Forces, which took 40 different original advertisements from the era and cropped, inverted, stretched, re-colored, used computer graphic effects and superimposed them over graphic images of tall buildings.
Hornbacher also has a word about the significance of the title sequence.
"It provides viewers with their first impression of the Series, giving them a glimpse of the Series' tone, mood and general concept," he says. "The sequence is intended to provide insight into the main character's psyche, as well: In only 36 seconds, the viewer learns that the life of (the) main character is not quite as it seems; he appears calm on the outside but is in free-fall on the inside. By incorporating bits and pieces of 1950s- and 1960s-era advertisements and billboards, the opening title sequence also provides viewers with a sense of the time period in which the Series is set, as well as the style and the 'feel' of the era."
Here's a look at Hornbacher's full declaration, which includes exhibits that detail the wide range of advertisements used in the opening credits that formed a pastiche of 1960s Madison Avenue. A video of the title sequence is also below.