From the 1709 Blog:
Gianluca Vacchi is a social media influencer and DJ, who has more than 12 million followers on Instagram. He appeared last year in a commercial (do not watch while drinking) for the Bank of Georgia, Europe, which was so successful that “that many United States residents registered as clients of the bank” (because nothing gives you more confidence than a Santa Claus in an orange satin robe).
While Italian and living in Milan, Vacchi travels around the world to dance on roof tops, DJing, and generally having a good time. He chose Mr. Enjoy as his nickname. After all, as another Italian influencer, who also meddled a bit with music, urged us: “Godiam, la tazza e il cantico, La notte abbella e il riso.
But Vacchi is not enjoying two of online investing company E*Trade’s commercials, [here is the other one] which were produced in mid-2017, where a middle-aged man, presented as “your boss,” is featured dancing with abandon (with who?)… with scantily dressed women.
Vacchi has just filed suit in the Southern District of New York against E*Trade, claiming “copyright infringement, as well as false endorsement and misappropriation of protectable character, protectable scenes, and image and persona of “the coolest man on Instagram.”
. . . .
New York Civil Rights Law §§ 50 and 51 is the state of New York’s only right to privacy, which is not otherwise recognized by its common law. The statute makes it a misdemeanor to use the name, portrait or picture of a living person for advertising or trade purposes without prior written consent.
The E*Trade commercials are certainly “for advertising or trade purposes.” What is less certain, however, is whether the “name, portrait, or picture” of Vacchi has been used by Defendant.
. . . .
“In fact, even a simple Google search for “dancing millionaire” inevitably shows Plaintiff in the top results” (Complaint).
Plaintiff claims a use of his image and his persona.
New York courts have recognized that using a “lookalike” of a well-known personality for commercial purposes is a violation of New York Civil Rights Law §§ 50 and 51. In this case, a lookalike of Jacqueline Kennedy Onassis has been featured in a Dior ad. The court noted that “Plaintiff’s name appears nowhere in the advertisement. Nevertheless, the picture of a well-known personality, used in an ad and instantly recognizable, will still serve as a badge of approval for that commercial product.” In our case, Vacchi’s name is not used in the commercial either.
. . . .
In our case, Plaintiff is a middle aged man, with trimmed grey beard and hair, a toned and tattooed body, and a propensity to take pictures of himself while bare chested. This is his image, his likeness, his resemblance.
Plaintiff claims that Defendant used a “clone of Vacchi, dancing with women on a boat while DJ’ing: conduct that based upon numerous YouTube videos, photographs, and music videos created and published by Vacchi, has become synonymous with the image and persona,” and describes “the E*Trade Character [as] a heavily-tattooed male with bare torso dancing with a beautiful female companion.”
. . . .
So Plaintiff’s persona could be: man + middle-aged + toned and tattooed body + glasses + dancing + trim gray beard + exotic locales + women in teeny weeny bathing suits.
Link to the rest at 1709 Blog
Here is a video of the real Gianluca Vacchi in a bank commercial.
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(For visitors to TPV from nations other than the United States, US banks don’t make commercials like this one. However, while watching the commercial, PG had a strong reaction. He is not certain whether his response will cause him to open an account with the Bank of Georgia (the one in Tbilisi, not any bank in Atlanta) or not, but the commercial is more memorable than any prior bank commercial he has viewed.)
Here is one of the allegedly offending eTrade commercials.
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https://youtu.be/_BoUXcdFgYc
PG’s observation is that Mr. Vacchi is a much better dancer than Mr. eTrade, but he suspects you can hire Mr. eTrade to dance in your commercial for less than Mr. Vaacchi charges.
Comparing the two commercials, PG is much more likely to open a bank account in Tbilisi than one with eTrade even though he can read all the words on eTrade’s website.
PG – aren’t you concerned about being sued yourself by Mr Enjoy?
That video you have prominently on your website of you dancing on the cruise with your wife… aren’t you playing with fire?
Man? Check
Middle Aged? We’ll add a bit to your age, but check.
Toned and tattooed? Check check and check
Glasses? You look like a librarian
Dancing? Rumor on the street claims you have won awards with your dancing skills
Trim Gray beard? nothing wrong with a little salt. makes you look more distinguished.
Exotic locales? Toledo! Omaha! Boise! If that ain’t exotic what is?
Woman in teeny weeny bathing suits? I’m sure Mrs PG can model bathing suit much better than the ladies in the video, right?
I smell massive infringement and Mr. Enjoy is going to want to claim all the money Mrs PG is making self publishing.
I think Mr. Enjoy and his attorneys have bigger fish to fry than TPV, Jonathan.
And PG claims to be a lawyer, so he might know the odds of this ever going anywhere. Hmm, on the other hand you don’t think PG is baiting them do you? 😉
The lawsuit is BS. Mr Enjoy is essentially claiming copyright on the image of an older white guy dancing topless.
Do I really have to show you fifty examples of prior art to prove the claim is bogus?
I don’t think he has a case. There are similarities – dancing geezers with women young enough to be their granddaughters – but their bodies are very different, their beards are different…
More of a way to get exposure for the orange Santa guy – turn this into a promotion for him – than for real.
What do I know – wrong demographic. I wouldn’t get a bank account there for love nor money.
I can see why we wouldn’t have a bank ad like the one with Mr. Enjoy: without knowing any background details, we would have no idea what the commercial is selling. As I recall learning, in effective commercials, the product is supposed to be front and center, so that you grasp right away what’s being sold.
In the first commercial, the narrative I have is that a woman is looking through the house for … something. Petty cash? Treasure? Secret documents? Is she supposed to be in this house, or is she robbing it? And then she meets an old guy, who may be her … grandfather? Santa? And they dance. I would have no idea how the bank is connected to this. Perhaps that the young lady was keeping her cash under the mattress before, and now she should keep it in a bank? But traditionally, wouldn’t the old guy have been the one not to trust banks? I can’t believe the woman wouldn’t have a credit card herself …
As for infringing, Mr. Enjoy looks like he has a case.
Infringement or parity? Or can no other ad or show now have a breaded, tattooed, old fart? (Oops, I think both of these are infringing prior art here in one way or another!)
Me, I thought they were both jokes on that beer ad with ‘the most interesting man in the world’.
This is like me having a haunted house in my story and saying no one else can use haunted houses in theirs.
MYMV (and stay thirsty my friends! 😉 )
Allen, Did you mean parody?
I would call this infringing, myself. The resemblances can hardly be coincidental.
Gotta say, I ain’t ever seen a bank ad quite like that one.
They get turned on by different things in Tbilisi than they do in Atlanta, Karen.
Maybe that explains it. My father’s father and his family come from Odessa…
I would imagine that suing over damages from a look-a-like would require you to reasonably be able to show that people knew who you were.
No one know’s who this guy is.
Does that mean that it’s OK to plagiarize someone else’s writing as your own, as long as they’re obscure enough?
Apples and oranges. The two actors look vaguely like each other. They don’t have him use the man’s music, name, or claim to be him in any way. Under Mr. Enjoy’s argument, every car commercial ever would be a copyright violation. So would every TV show with a space ship and a crew. The expression is covered, not ideas. An old guy dancing with a young hottie is not an expression, just an idea, and a very old one at that.
Plagiarism isn’t “ripping off” it’s copying, exactly, someone else’s work. That isn’t what has happened here. It’s not like they hired a Bradly Cooper look-a-like and had him endorse their service.