By: Jillian Bauman
Ariana Grande (“Grande”) filed suit in the Central District Court of California against retail giant Forever 21, Inc. (“Forever 21”) on September 2, 2019., alleging, inter alia, violation of Ca. Civ. Code § 3344 and violation of the common law right of publicity. The suit centers around a multi-platform ad-campaign launched by Forever 21 in January 2019 which used imagery associated with Grande’s “Thank, U Next” album. In the ads, Forever 21 featured a model with a striking resemblance to and styled in a similar manner as Grande in her “7 Rings” music video.Additionally, the marketing campaign used “7 Rings” audio, actual photographs of Grande, and captions containing lyrics from “7 Rings.” On top of this, Forever 21 had approached Grande about an endorsement deal between the months of November and December 2018 prior to the album’s release. However, negotiations fell through when the retail company was unwilling to pay fair market value for Grande’s influence. Fair market value for an Instagram post is determined through the weighing of several factors including engagement rate, follower growth rate, and follower demographic and lifestyle. Grande alleges her fair market value for a single post is well into the six-figure range and can even be into the millions for long term deals. The main thesis of the lawsuit is that Forever 21 aimed to give the impression that Grande was affiliated with, or endorsed their products, without paying the high price tag associated with such conduct. Grande is seeking at least $10 million in damages.
The damages amount may seem astounding compared to the offense, however, when you consider that one promoted social media post garners close to $1 million, it is easy to see the basis for damages calculation. The statute governing the right of publicity allows for the recovery of profits attributed to use, punitive damages, and attorney’s fees and costs in addition to the damages sought. If found liable, the nearly bankrupt retailer could owe Grande a significant amount of money. And it seems likely that Grande will prevail if the case goes to trial for the reasons discussed below.
California law, which has relatively strong right of publicity laws, governs this action. Grande alleges a violation of both statutory and common law right of publicity. “[E]lements of a common law right to publicity claim are ‘(1)the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercial or otherwise; (3) lack of consent; and (4) resulting injury.” In addition to the four common law elements, Ca. Civ. Code § 3344 requires a knowing use and “a direct connection between the use and commercial purpose.”
It is clear the Defendant’s used the plaintiff’s identity. Forever 21 not only evoked Grande’s likeness with its use of a look-a-like model, but actual photos of Grande were incorporated in social media posts as part of its marketing campaign. Thus, the first element is satisfied.
The second element requires that the use be to the Defendant’s advantage. Here, the defendants used Grande’s image in advertising for commercial advantage. The exact commercial advantage received by Forever 21 will have to be worked out through the discovery stages of litigation. However, it can be imagined that Grande’s high price tag for endorsements alludes to significant influence over target demographics. Forever 21, assumingly, was attempting to capitalize on this influence.
Furthermore, it is evident that the fast fashion brand did so without consent from Grande or her representatives. Ostensibly there would be no lawsuit if Grande had allowed Forever 21 to use her likeness. In furtherance of finding the third element satisfied, Grande’s representatives expressly declined an endorsement deal with Forever 21.
With regards to the fourth element, the Central District Court of California has noted there is an injury “if [defendant’s] revenue has increased due to its use of the plaintiffs’ names and likenesses, [defendant] has deprived the plaintiffs of money they could have made by exploiting their right to publicity on their own or through licensees.”
Finally, the statutory elements of knowledge and direct connection will also likely be met. Forever 21 knew, at the very least, it was using photos of Grande. The uncanny resemblance between the model, clothing worn, and imagery of the advertisements coupled with captions of Grande’s song lyrics suggests that Forever 21 was purposefully using Grande’s identity. The use of Grande’s likeness in advertising is directly connected to the commercial purpose of selling the garments advertised.
For the foregoing reasons, Grande has a strong case against Forever 21 for violation of Ca. Civ. Code § 3344 and the common right of publicity. The complaint additionally alleges trademark and copyright violations not discussed here. Because of the strong likelihood Grande will succeed on the merits for at least two of the allegations, it is in Forever 21’s best interest to attempt a settlement agreement. In fact, the parties entered a joint stipulation “to extend Defendants time to respond . . . [and] to allow parties time to continue meaningful settlement discussions,” on Sept. 23, 2019.
 Complaint at 1, Grande-Butera v. Forever 21, Inc., No. 2:19-cv-07600 (filed Sept. 2, 2019).
 Id. at 7.
 Id. at 9.
 Id. at 6.
 Id. at 7.
 Eduardo Morales, How to Measure What an Instagram Post is Worth, Medium, (Aug. 9, 2017) https://medium.com/the-mission/how-to-measure-what-an-instagram-post-is-worth-ffb38e91a9dd
 Complaint, supra note 1, at 2.
 Julia Jacobs, Ariana Grande Sues Forever 21 Over ‘Look-Alike Model’ in Ads, N.Y. Times, (Sept. 3, 2019) https://www.nytimes.com/2019/09/03/arts/music/ariana-grande-forever-21.html.
 Andrew Hutchinson, New Listing Shows Just How Much Celebrities are Being Paid Per Sponsored Intsagram Post, SocialMedia Today (July 24, 2019) https://www.socialmediatoday.com/news/new-listing-shows-just-how-much-celebrities-are-being-paid-per-sponsored-in/559360/ (listing a report that shows Ariana Grande earns $996,000 per social media post).
 Cal. Civ. Code § 3344 (a)
 Soma Biswas, Forever 21, Teen-Focused Retailer, Files for Bankruptcy, Wall St. J. (Sept. 30, 2019, 11:28am ET) https://www.wsj.com/articles/forever-21-teen-focused-retailer-files-for-bankruptcy-11569811923
 Complaint, supra note 1.
 Michaels v. Internet Entm’t Grp., Inc., 5 F. Supp. 2d 823, 837 (C.D. Cal. 1998) (quoting Eastwood v. Superior Court, 198 Cal. Rptr. 342, 347 (Ct. App. 1983)).
 Complaint, supra note 1, at 8-10.
 Michaels, 5 F. Supp. 2d 823, 837
 Jacobs, supra note 7.
 Hutchinson, supra note 9.
 Complaint, supra note 1, at 7.
 Michaels, 5 F. Supp. 2d 823, 837-38.
 Complaint, supra note 1, at 11.
 Id. at 1.
 Joint Stipulation, Grande-Butera v. Forever 21, Inc., No. 2:19-cv-07600 (filed Sept. 2, 2019).