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Only in America
12 June, 2009  
Woody's big fat right to privacy

American Apparel ripped off the image of Woody Allen … Strange marketing idea … The CEO of the company thinks that he and Woody are victims of unfortunate sexual innuendos … If only his lawyers had read Nixon v Slater & Gordon ... Pillsbury Flom reports Stateside


imageIn 1977, Woody Allen sounded quite a resonance in Annie Hall when there is a split screen scene of Dianne Keaton (Annie) and Woody (her boyfriend, Alvy) seeing their respective therapists.

Woody’s therapist asks: “Do you have sex often?” He answers: “Hardly ever. Maybe three times a week.”

She responds: “Constantly. I’d say three times a week.”

The movie’s audience, both men and women, nodded knowingly and the scene neatly summarised the Mars/Venus dichotomy years before the book was ever published.

Allen v American Apparel also shows just how two people can see the same thing with such different perspectives.

Dov Charney, founder and CEO of American Apparel, claims to be a huge Woody fan. American Apparel’s branding usually takes its lead from the David Jones school of kiddie fashion and has been described by Michael Wolff as “underage retro porn”.

imageDov took a shine to the scene in the movie where Alvy is subjected to an Easter dinner with Annie’s goyim family and, feeling out of place, he is fantasised as an Hasidic Jew.

This still-shot was displayed by American Apparel on two billboards, one in NYC and one in Los Angeles and hurriedly removed after less than a week following a word to AA from Woody’s lawyers.

The image was accompanied by the words “American Apparel,” along with some Yiddish text that translates to “The Holy Rebbe”.

Beneath the black hat and beard Woody would have been hard to recognise and the point of the ad was obscure to all but Dov and his inner circle who claimed to revere the film maker.

An AA spokesperson helpfully explained that Woody was, “AA’s spiritual leader”.

Dov later said the billboards were “designed to inspire dialogue.”

Woody saw things differently, and wasted no time in asking the Federal Court in NYC to award damages of $10 million for the unauthorised use of his image.

AA and its hapless insurer were in a pickle without any substantive defenses to the claim on liability and so they apologised while at the same time trotting out the well-worn tactic of some celebrity muck-raking to encourage Woody to settle for a few shekels.

And Woody had certainly been historically obliging by marrying Mia Farrow and then shtooping her 21-year-old adopted daughter, Soon-Yi Previn, resulting in a particularly nasty divorce and custody case where Mia accused him of sexually abusing their jointly adopted seven-year-old daughter, Dylan.

He was cleared in a subsequent court case by independent experts, but Mia got custody and the judge said Woody was, “self-absorbed, untrustworthy and insensitive”.

imageFor good measure he also described his tilt at custody of the kids as a “frivolous petition of no merit”.

This happened way back in 1993 and Woody went on to marry Soon-Yi in 1997 in which union they remain in apparent happiness.

AA’s attorneys filed a never-ending witness list which included Farrow and Soon-Yi and made document requests helpfully defining the sex scandal as, “your relationship with Soon-Yi Previn including the discovery … (of) nude pictures you took of Soon-Yi Previn”.

AA lawyer, Stuart Slotnick (seen here, left, with Charney), talked up the issue publicly stating:

“Woody Allen expects $10 million for use of his image on billboards that were up and down in less than one week. I think Woody Allen over-estimates the value of his image. Certainly, our belief is that after the various sex scandals that Woody Allen has been associated with, corporate America’s desire to have Woody Allen endorse their product is not what he may believe it is.”

They got to depose Woody in December last year where he righteously described AA’s branding as “sleazy”.

While some yearn to appear before the US Supreme Court, my aspirations would be fulfilled by taking Woody’s deposition, a task which fell to one of AA’s much less deserving attorneys.

imageJust imagine the possibilities. Getting Woody to enlighten us on how he defines “sleazy”. And delicately exploring his relationship with his current muse, Scarlett Johansson (snap), who was just 21 when she starred in her first film under Woody’s direction, Matchpoint.

AA’s strategy to take the low road back-fired on every front.

Within the company, Dov was forced to disown the smear. An internal memo dated April 21 had his spokesperson saying:

“Some legal moves … ended up getting spun into what seemed like a mean-spirited attack on Woody’s personal life. Dov of all people wouldn’t have done that intentionally.”

The memo finally explained that the billboard was drawing some weird parallel between Woody’s sex scandal and Dov’s reputation as a pants (or pants down) man following a handful of sexual harassment suits brought against him, his predilection for attending business meetings in his underwear, including a thong on one occasion, and a propensity to masturbate in front of employees and a female reporter for a woman’s fashion magazine.

Turns out Dov thinks he and Woody have much in common in both being unfairly characterised as old perves obsessed with girls who hover within cooee of the age of consent.

Dov was forced to settle the case for an eye-popping $5 million on May 18.

Woody insisted on the amount being made public while perfectly setting the scene so that the announcement was actually made on the doorstep of the Federal Court in Lower Manhattan on the first day of trial. He trumpeted:

“I am told the settlement of five million dollars I am being paid is the largest reported amount ever paid under the New York right to privacy law.”

imageDov (snap) said the settlement was forced by the insurer and that the First Amendment should have prevailed. But he still loved Woody, of course.

If only Dov, or his lawyers, had read Nixon v Slater & Gordon.

The case is poignantly redolent of Allen v American Apparel.

Slater & Gordon had the laudable objective of reassuring doctors the firm avoided unfair publicity by, as then Justice Ron Merkel put it, publishing a booklet to “explain the firm’s approach and ethics in relation to medical malpractice claims”. Ronnie explained:

“The colorful and striking covers of the booklets were prepared in that format to capture the attention of the persons to whom the booklets were to be sent.”

The cover featured, “two surgeons conducting cardiothoracic surgery on a patient, with a fully robed barrister at the head of the operating bed scrutinising the surgery.

The captions above the photograph said, ‘Medical malpractice claims’ and below, ‘A litigation explosion’?”

Slaters had obtained the photograph from The Age with its permission and had digitally altered it to disguise the doctors.

Facial hair was removed and even ear lobes were reshaped.

But the surgery itself carried the signature of the doctors involved and they were nevertheless recognized by several of their brethren who were, of course, shocked and mortified by the clear imputation that their colleagues were engaged in medical malpractice.

Ronnie ordered what were then record damages in Victoria totalling $300,000. He concluded with these words:

“In the present case, albeit unintentionally, Slater & Gordon’s endeavour to reassure the medical profession of its commitment to avoiding unfair publicity has resulted in unfair publicity concerning two members of that profession.”