Mistrial is declared in
surf photo lawsuit

Some of the plaintiffs violated a
gag order by talking to the media

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By Leila Fujimori
lfujimori@starbulletin.com

A Los Angeles federal judge declared a mistrial yesterday in the lawsuit filed by legendary Hawaii surfers against clothing chain Abercrombie & Fitch over the unauthorized use of their images in a photo in its 1999 "Surfing Nekkid" spring catalog.

Judge Manuel Real said some of the surfers violated a court order by talking to television and newspaper reporters Tuesday night.

The action came even after jurors told the judge they had not read a Los Angeles Times article quoting one of the plaintiffs, surfing legend George Downing.

Abercrombie & Fitch attorney Joel Smith said, "The judge ordered the plaintiffs not to try the case in the press, but to try the case in the courtroom."

The mistrial was declared just before Smith was to deliver his closing arguments in the trial.

Seven Hawaii surfers sued the clothing retailer for allegedly exploiting their names and images to promote a clothing line.

Smith used the defense that the photo taken at Makaha Beach in 1965 of 13 surfers including Downing, Ben Aipa and Richard "Buffalo" Keaulana was used to illustrate an article about a Southern California beach.

Smith said use of the photo was protected by the First Amendment and was not used for promotional or advertising purposes.

Real would not permit the catalog to be admitted as evidence during trial.

Real had dismissed the case in February 2000, ruling the First Amendment right to free speech protected the use of the photo. But the 9th U.S. Circuit Court of Appeals reversed Real's ruling in September and ordered the case sent back to Real for trial.

"At the end of the hearing, I asked Judge Real to disqualify himself based upon his bias in the case," the surfers' attorney Brent Blakely said yesterday. "Judge Real has attempted to be the judge, jury and executioner in this case. All plaintiffs want is a fair trial."

The judge refused to disqualify himself.

Blakely expects a new trial within two to six months.