Schwarzenegger Isn't Buying It

Times Staff Writer

It's a small photo, the size of a thumbprint, all but lost amid the images of minivans and trucks and color headlines blaring "33-Hour Month-End Countdown!"

But for actor Arnold Schwarzenegger, the unauthorized use of his picture in a newspaper ad for an Ohio car dealership was serious enough to warrant a multimillion-dollar lawsuit.

The star of the "Terminator" movies and expected Republican gubernatorial candidate in 2006 is demanding that Fred Martin Motor Co. and its ad agency pay him more than $20 million for using his photo to hawk cars in an advertisement that ran in the Akron Beacon Journal.

The suit, which was filed in federal court last summer, claims the car dealership reproduced his image without his permission and violated Schwarzenegger's self-imposed ban on appearing in commercials in the United States.

"Such activity diminishes his hard-earned and well-deserved reputation as a major motion picture star and risks the potential for overexposure of his image to the public," according to the complaint filed by the actor's attorneys.

The furor over the photo already has generated thousands of dollars in legal costs, a tense deposition session in Cleveland and five volumes of legal documents in U.S. District Court in downtown Los Angeles.

The case -- A. Schwarzenegger vs. Fred Martin Motor Co. et al -- also demonstrates the litigious nature of the man many California Republicans are hoping will run for governor in the next election.

With his attorney Martin D. Singer, a Hollywood lawyer who represents an array of A-list actors, Schwarzenegger has filed a series of multimillion-dollar lawsuits in the last decade, seeking to protect his reputation and squelch misuse of his image.

He has been overwhelmingly successful.

The actor forced a Canadian workout club to stop using the name "Arnold's Gym," won damages from a British newspaper that claimed he admired Nazi views, and got an apology and an undisclosed settlement from the Globe after the tabloid ran a story claiming the movie star's heart was a "ticking time bomb."

But Schwarzenegger's lawsuit against Fred Martin Motor stands out, both because of the obscure use of his image and the amount of money the actor is demanding in compensation.

"Is there a violation of the law? There may well be," said Robert Dudnik, a veteran entertainment litigator in Los Angeles.

"But I think that if, at trial, they ask for $20 million, the jury would be offended, given the inconsequential nature of the use.

"The jury will likely think he's a billionaire, and why are they going to want to give a billionaire millions of dollars for a small ad that ran in the Akron Beacon Journal?"

Singer said Schwarzenegger is asking for $20 million because the actor has been offered similar sums to do commercial endorsements in the United States.

"You don't have the right to use someone's photo to induce customers to buy products without paying the price .... And that is his value," Singer said.

"It is very important for somebody like Arnold Schwarzenegger to protect his likeness, This was a very blatant misrepresentation and it's irrelevant whether it occurred in Akron, Ohio, or New York."

In Hollywood, lawsuits and threats of lawsuits over misappropriation of likeness are relatively common, though generally not as large as the one Schwarzenegger has brought against the Akron car dealer and its advertising agents.

For the actor, however, the bigger question is whether the legal tactics of Hollywood will work in the world of politics.

He has responded previously to political volleys with talk of litigation. When Garry South, Gov. Gray Davis' political strategist, circulated a 2001 Premiere magazine article that claimed the actor had committed marital infidelities, Singer threatened legal action against him and the magazine.

"This you have done at your peril," Singer wrote to South in a five-page letter accusing South of defamatory statements.

Singer also warned that he would sue for copyright infringement if South released portions of the letter to the media.

Soon afterward, South said, an attorney for Schwarzenegger's wife, NBC News reporter Maria Shriver, called him to relate how upset she was as well.

"I was just astonished by what I considered a gross overreaction to what was a minor provocation," South said.

"Does that indicate to you somebody with a thick enough skin ... to run for public office?"

Some GOP strategists also are worried that Schwarzenegger believes he can control his political image with the same techniques he has used to cultivate his movie star persona.

"He has no appreciation that taking the entertainment culture and forcing the rules that apply there to the world of politics doesn't work," said a Republican consultant familiar with the actor.

"That is what has to be adjusted, that mind-set of intimidation. That will be one of toughest aspects of the road ahead of him."

Schwarzenegger did not respond to calls for comment.

The rules and expectations are different in Hollywood.

"One way you can protect your likeness is, you go after people who use it without your permission and immediately sue them and send a message to others that you're not going to tolerate that," said Eugene Quinn Jr., a law professor at Temple University who specializes in right of publicity cases.

The goal of the Fred Martin suit "isn't to get money," Quinn said. "The goal is to use it as a club to make everyone afraid of him in the future."

The advertisement in question -- a full-page color display ad for the car dealership's end-of-the-month sale -- ran in the Beacon Journal for five days in April.

Among the photos of newChryslers, Nissans and Jeeps, next to a box touting the car dealership's lease-termination program, was a 1-square-inch picture of Schwarzenegger in his "Terminator" sunglasses.

In court documents, Schwarzenegger's attorneys allege that an employee of Zimmerman & Partners Advertising, the Fort Lauderdale, Fla.-based firm that designs the Ohio dealership's ads, inserted the photo of the actor, along with a cartoon voice balloon that read, "Arnold Says: Terminate Early at Fred Martin."

Attorneys for the car dealership and the ad agency refused to comment on the incident, citing the ongoing litigation.

Fred Martin Motor won a victory in November when Judge Florence-Marie Cooper ruled that the federal district court in Los Angeles did not have jurisdiction over the Ohio dealership and dismissed it from the suit.

Schwarzenegger has filed an appeal to the 9th Circuit Court of Appeals, along with a motion to expedite the appeal, which typically takes one to two years.

Meanwhile, the suit against Zimmerman is proceeding here, despite the advertising agency's efforts to get the matter moved to Ohio.

Several legal experts said Schwarzenegger's case is a strong one, because the law clearly states that you cannot use someone's image or likeness without that person's permission. And it would be hard to mount a defense that the photo was a parody protected by the 1st Amendment, they said, because it appeared in an advertisement.

"My guess is, this advertiser just hadn't really thought about the legal issues and thought it would be a joke," said UCLA law professor Eugene Volokh. "It's probably going to turn out to be a very expensive joke."

But Schwarzenegger's demand for $20 million in actual damages, plus any profits the dealership made off the photo, seems to outstrip the extent of the offense, many experts said.

The photo's "lack of prominence in the ad will certainly affect the outcome," said Doug Mirell, a Los Angeles attorney who specializes in 1st Amendment issues.

"Did someone who was not going to come in to buy a car come in because of a 1-inch-by-1-inch picture of Schwarzenegger? That's a tough one to prove."

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