Wednesday, May 15, 2002

Surfers in court
again over catalog

Legends from the '60s press their
suit against Abercrombie & Fitch

By Leila Fujimori

A group of Hawaii surfing legends are getting a second chance at suing clothier Abercrombie & Fitch for using an unauthorized photo of them in its 1999 "Surfing Nekkid" spring catalog that also featured nude and scantily clad models.

Surfers George Downing and Richard "Buffalo" Keaulana are scheduled to testify today at the second day of the trial in a Los Angeles federal courtroom. Other Hawaii plaintiffs Joey Cabell, Mike Doyle, Paul Strauch, Ben Aipa and Rick Steele testified yesterday. The jury trial is expected to last until Friday.

Strauch testified yesterday he was shocked when he saw the photo in the catalog.

"They didn't have my permission to use it," he said. "Our likeness and our image was misappropriated through the use of this photograph."

The surfers, now grandfathers in their 60s and 70s, say they find the use of the photo embarrassing and will not show the catalog to their grandkids. The black-and-white 1965 photo, used as the catalog's centerfold, was from the international surfing championship at Makaha Beach and shows 13 surfers standing with their boards.

"When you open the catalog and you run into pictures that show nude guys, who supposedly are made to look like surfers, and the title 'Surf Nekkid,' that didn't go too well with me," Downing, 72, said yesterday.

The seven sued the clothing retailer for allegedly exploiting their likenesses and names to promote a clothing line. The claim was dismissed in February 2000 when federal Judge Manuel Real ruled the First Amendment right to free speech protected the use of the photo. However, the 9th Circuit Court of Appeals reversed Real's ruling in September and ordered the case sent back to Real for trial.

"We got ripped off major by a multibillion-dollar company that has been in recent years trying to get into the surf market, and they are willing to get there any way they possibly can, including using our image and our names without paying us," Downing said yesterday.

"Even if they came to us and offered us money, we would not have accepted it because of the content of the catalog, the nudity."

Joel Smith, an attorney for Abercrombie, said the company didn't use the photo because of the surfers, but viewed it as a "vintage photo" that fit the catalog's 1960s theme.

The company also alleges the plaintiffs are pursuing the lawsuit as a "pretext to benefit A&F's competitor Quiksilver." Some of the plaintiffs allegedly have "close business and personal relationships" with the rival clothing manufacturer, court documents said.

The Associated Press contributed to this report.

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