A shanda all around

We reported the Woody Allen right-o-publicity lawsuit arising from “that billboard” when it was filed in April.

This billboard:

Yeah, oy.  And now, it’s settled, for $5 million.  That’s not chopped liver, especially when you consider that it’s more than the lifetime gross of five of his last ten movies.  In truth, it is a compromise figure — I can hardly imagine the Wood Man taking a $5 million fee voluntarily to do a billboard (and, of course, it would hardly make sense for American Apparel to pay it).

Especially that billboard, so reminiscent of Mr. Konigsberg’s earlier, er, rootsier films.

The settlement came on the eve of jury selection, which is pretty interesting, too.  What is it about this fact pattern that resisted summary judgment, besides perhaps the amount of damages?  The press reports are worse than unhelpful:

“Testimony revealed that American Apparel believed that fear of publicity would keep me from ever taking action, and so they put my face on billboards, on the Internet, and my image on their building,” [Allen] said.

[Dov Charney, founder and CEO of American Apparel], who said he finally could talk about the case, said the ad was a “an attempt to at least make a joke about” sexual harassment lawsuits filed against him and his company in recent years.

“Today, two years later, all the claims in the lawsuits have been completely disproven and yet at the time, some writers characterized me as a rapist and abuser of women, others asserted that I was a bad Jew, and some even stated that I was not fit to run my company.”

Huh?  Yes, Charney has had some embarrassing “adventures,” all right —

Charney said it was “ironic that I have to explain this to Woody Allen when he has expressed similar frustrations in the past.”

Yes, yes, but — relevance, please, counselor?   Believe me, I’m not the only one confused.  And get this:

American Apparel lawyers wanted to call as witnesses Allen’s former companion Mia Farrow and Soon-Yi Previn, Farrow’s adopted daughter and Allen’s wife.

Allen’s relationship with — and eventual marriage to — Previn was scandal material for tabloids beginning in 1992, when she was 21.

And?  Okay, maybe relevant on damages, right?  Arguably the dollars-and-cents value of that cute little egomatistical nerdy “intellectual” New York Jewish voice of moral insight slid a notch or two after that “relationship” thingy.  But why would you need Farrow and Previn’s testimony to prove that?  Allen’s lawyers made the same point, it seems, a little while back.  Indeed, Judge Griesa, an experienced District Judge who knows IP law, had no problem separating the wheat from the chaff in terms of discovery reasonably calculated to the discovery of relevant evidence as to damages in this order earlier in the case.

In any event, by all appearances from the PACER docket, no substantive motions were made in this litigation.  Clearly no one really thought it was going to be decided on the merits, and indeed the docket is full of plenty of unsportsmanlike conduct, from what I can tell mainly from Charney’s side, including a refusal to comply in timely fashion with all kinds of discovery deadlines.

On the other hand, there is the chicken game.  In this case, boiled.  And as the trial date got closer and closer, quite a bit of pretrial gelt started getting spent by both sides… motions in limine, proposed voir dire, proposed jury instructions… hmm, what’s that smell from the kitchen?

Ach!  That’s just the recipe for an overcooked, kosher style but very unholy cholent of an outcome, though one entirely appropriate substantively and symbolically.  For this is a case brought by a Jewish actor over the misappropriation, by a Jewishly- (and otherwisedly-) confused shmatte–hondler, of an ur-Jewish persona misappropriated from his own heritage by the former, for the implicit purpose of distancing that first shlemiel from that heritage so he can feel more comfortable about those “relationships.”

Sounds delicious, and rich in both schmaltz and irony.  Jew eat yet?

Originally posted 2009-05-20 22:08:51. Republished by Blog Post Promoter