This blogger is proud to say that I have never watched any show featuring a member of the Kardashian family (okay, okay, unless you count their step-brother Brody Jenner…you know I could never resist The Hills). I normally try to pretend to steer clear of anything Kardashian, as I fall into the camp of people who wonder, “why the heck is she famous, anyway?” (Yes, that’s a rhetorical question — I know it’s because of her video debut.) But I can’t resist writing an update about the Old Navy commercial we posted about back in March 2011. (Extra shout-out to fellow blogger Megan Rivetti for anticipating Kim K.’s lawsuit, which wasn’t actually filed until July.)
Kim’s lawsuit claims that Old Navy and its parent company The Gap Inc. violated her right of publicity and misled and confused consumers, and seeks $15–20 million in damages. (For more on the right of publicity, see here; for more on consumer confusion, see here; for more on how the actress who starred in the Old Navy commercial is totally re-living Kim Kardashian’s life in other ways, see here.) But now The Gap’s lawyers are moving in on Kim’s “private life” (and the use of air quotes has never seemed more appropriate). Among other things, they have sought financial records that show how much stores Bebe and Sears earned by making deals with Kim and why Bebe dropped Kim, and information about “Kim Kardashian’s reputation as a singer and dancer.” As Eriq Gardner of THR, Esq. points out, one reason The Gap may be seeking information about Kim’s business dealings is to make out an argument — often used in defamation cases — that the plaintiff is “libel-proof” because her reputation is so ruined that no additional damage could be caused.
So let’s take a look at the contours of the so-called “libel-proof” defense.
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