August 09, 2013 11:53am PT by Eriq Gardner
Lionsgate, Ex-Model Settle 'Mad Men' Title Sequence Lawsuit (Exclusive)
Gita Hall May has settled a lawsuit against Lionsgate Entertainment for briefly showing her during the opening credits of AMC's Mad Men.
The lawsuit was filed in March by the 79-year-old ex-model who alleged her image from a Richard Avedon photograph shot more than half a century ago was used without her permission. The photo was for an early-'60s Revlon ad, and May said that she had never consented “to allow, forty years later, her image to be cropped from the photo, in secret, and inserted as a key element in the title sequence of a cable television series.”
In response to the lawsuit, Lionsgate said that the use was protected by the First Amendment. On Monday, a Los Angeles Court was scheduled to hold a hearing on the defendant's anti-SLAPP motion, but in advance, the parties have figured out a way to resolve the situation. Court papers indicate an unconditional settlement but do not spell out the terms.
The opening of Mad Men contains more than 40 period advertisements, according to a declaration by Mad Men executive producer Scott Hornbacher, including those from Herman Miller, IBM, American Airlines, Carling Black Label Beer, Van Heusen, Pan Am, TWA, Heinz, Lady Remington, Zippo and Smirnoff Vodka.
According to Lionsgate's previous motion to strike May's lawsuit, "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."
Represented by attorney David Halberstadter at Katten Muchin Rosenman, Lionsgate was making the case that the use of May's image was covered as a transformative fair use.
May had her own publicity rights to bring forward and might have been encouraged by the famous lawsuit of a California schoolteacher, an ex-model named Russell Christoff who sued after noticing his face on a jar of Taster's Choice instant coffee. Christoff was paid $250 to pose for a photograph in 1986 and found the image used years later in a different context. He won more than $15 million at a jury trial before the verdict was reversed on appeal.
The plaintiff also had evidence that suggested that Mad Men producers knew enough to acquire a license from Revlon, if not her.
May isn't a cable subscriber, so she didn't learn about her face and image being used until 2012, when Mad Men became available on home video, five years after its debut on AMC. She was represented by The Law Hut.
Lionsgate's attorney confirmed the confidential settlement.