Kith must face right of publicity claims over its allegedly unauthorized use of a Black artist’s likeness in a Black History Month collection, following a court’s refusal to toss out the case late last year. In the lawsuit, which was filed in the Supreme Court of the State of New York in January 2024, Darryl McPherson accuses the upscale streetwear brand of “commercially profiting from, and failing to remedy, its unauthorized, nonconsensual exploitation of [his] … likeness as part of a commercial brand activism campaign purporting to support the Black community during Black History Month.”
At the heart of the dispute is Slum Flower Titus, a painting by artist Samuel Olayombo, which was featured on Kith’s apparel and promotional materials. McPherson alleges that the painting is a direct reproduction of a widely circulated photograph of him taken at the 2018 Afropunk Festival. Despite Kith’s commercial use of the artwork for its Black History Month capsule collection in 2023, McPherson alleges that he was never consulted, let alone compensated, for the use of his likeness. Moreover, McPherson asserts that the use of his portrait was central to Kith’s marketing push and that the image was displayed in Kith’s flagship stores in New York and Paris, as well as across online platforms.
And still yet, McPherson maintains in his lawsuit that Kith failed to conduct any due diligence regarding the ownership rights of Slum Flower Titus before commercially exploiting it. Had the company engaged in proper rights clearance procedures, it would have realized that the painting was derived from his likeness, requiring his consent, McPerson argues.
Against that background, McPherson sets out a claim under New York Civil Rights Law §§ 50–51, the state’s right of privacy/publicity statute, which protects individuals from unauthorized commercial use of their name, image, or likeness.
Kith’s Bid for Dismissal
Kith denied McPherson’s allegations in a motion to dismiss that it lodged with the court back in March 2024. The company argued that Slum Flower Titus is a work of artistic expression, protected under the First Amendment, and that New York Civil Rights Law §§ 50–51 does not apply to artistic works. Kith asserts that its promotion and sale of apparel featuring the painting was part of its annual Black History Month Artist Series, which aims to celebrate Black creatives. Kith has also claimed that it entered into a licensing agreement with Olayombo, who warranted that he had full rights to the artwork and that it was free from third-party claims. With that in mind, Kith stated that it relied in good faith on these representations and had no reason to believe it was using McPherson’s likeness without consent.
Not finished, Kith also argued that McPherson is not entitled to damages, as it promptly removed the content upon being notified of his concerns and has no plans to use the artwork in the future. The company maintained that McPherson’s claims of emotional distress and lost creative opportunities are speculative and insufficient to warrant compensation. Additionally, Kith asserted that the demand for punitive damages lacks merit since there is no evidence it knowingly engaged in wrongful conduct.
A Mixed Outcome & Kith’s Answer
The Supreme Court of the State of New York ruled on Kith’s motion to dismiss this summer, granting Kith’s motion in part (the court dismissed McPherson’s claim for punitive damages) but denying the bulk of it, thereby, allowing the lawsuit to proceed on the basis of McPherson’s allegations regarding unauthorized commercial use of his likeness. At a high level, the court found that further proceedings are necessary to determine whether Kith’s use of Slum Flower Titus constituted a violation of McPherson’s rights under New York Civil Rights Law §§ 50–51. As such, the ruling represents a mixed outcome for both parties: Kith successfully avoided potential punitive damages but remains engaged in litigation over the core claims of the lawsuit.
With the case still very much in paly, Kith lodged its answer in December, arguing that it commercially profited from the unauthorized use of McPherson’s likeness, and setting out an array of affirmative defenses, the most of which is its argument that McPherson relies upon “conduct that is immune from civil liability because it constitutes protected First Amendment expression.”
TLDR: Kith is positioning itself to challenge the lawsuit on both procedural and substantive grounds, emphasizing artistic expression, contractual protections, and a lack of direct exploitation of McPherson’s likeness. The case will now proceed with further litigation, including discovery, to assess the validity of McPherson’s claims.
The case is Darryl McPherson v. Kith Retail, LLC, 503083/2024 (N.Y. Sup.).
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