Jessica Alba Settles with Playboy

Hollywood starlet Jessica Alba threatened to blow the cover off of the March 2006 issue of Playboy magazine- a cover covered by her image. In a letter to Playboy from her attorney, she claims that she never authorized Playboy to use her name and likeness on the cover of the magazine which contained a feature entitled the “25 Sexiest Celebrities” (Alba ranked #1 on the list). Playboy did not shoot the cover photo, but rather the photo came from a work-for-hire promotional shoot for Alba’s upcoming movie Into the Blue. Alba claims that although, she did give Playboy permission to use the photo for the “25 Sexiest” feature, she never gave permission for her image to be used on the cover of the magazine. Alba claims that Playboy obtained the photo “fraudulently” and under “false pretenses” from Sony Pictures by telling Sony that Alba knew and approved of the manner in which Playboy would use the photos.

The thrust of the letter asserts that by placing Alba’s image on the cover, Playboy “has used and misappropriated Ms. Alba’s name and photograph for advertising purposes as a means of both attracting the attention of consumers to the magazine and/or [Playboy’s] website and to solicit the sale of the merchandise.” The letter claims that the cover photo will “motivate a decision” by consumers to purchase the magazine because of the expectation that Alba will appear nude in the magazine. The letter cites Newcombe v. Adolf Coors Co., 157 F.3d 686 (9th Cir. 1998) and Eastwood v. Superior Court, 149 Cal.App.3d 409, 198 Cal.Rptr. 342 (1983), as authority for the contention that the photo in Alba’s case represents a misappropriation inducing consumers to purchase the magazine. The contention is that Playboy is using the commercial value of Alba’s name and image to sell its own magazines and make a profit.

Another issue addressed was the fact that Playboy altered the photo from its original form by placing its trademark bunny logo on the lower right breast of Alba’s bikini- thereby improperly altering the photograph and creating an unauthorized derivative work in violation of U.S. copyright law.

We at The Brand were looking forward to following the pending lawsuit between Jessica Alba and Playboy, which had elements of right of publicity and misappropriation, multiple copyright infringements, and trademark/Lanham Act violations. And, if the facts truly were as stated in the letter from Alba’s attorneys, entertainment mega-firm Lavely-Singer, Alba’s case was headed for a summary judgment in her favor. Playboy looked bad from the start, which was the only thing that kept this ordeal from looking like a coordinated publicity stunt. Sadly, on April 5, 2006, it was reported that Ms. Alba dropped her demands in exchange for a personal written apology from Playboy founder, Hugh Hefner, and an “undisclosed” financial donation to two of her favorite charities. When asked about the settlement, Ms. Alba replied that “this was never about money, it was about setting the record straight about something that was done without my knowledge or consent.” In the end, Jessica Alba’s image has been enhanced rather than harmed by the controversy, and due to Hefner’s personal apology, Playboy’s image has benefited as well. The charitable donations are just the icing on the cake. With such a mutually beneficial resolution, a skeptic might even reconsider the possibility of a coordinated publicity stunt. We at the Brand are not cynical though, and will attribute this and all other win-win outcomes to good lawyering.