Face Value: Kith Fights Against Right to Privacy and Right of Publicity Claims in McPherson v. Kith Retail, LLC

Kith, founded by Ronnie Fieg, faces a lawsuit alleging violations of the right to publicity and right to privacy under New York Civil Rights Law §§ 50–51 in New York Courts.[1] Darryl McPherson, a Brooklyn artist and model, filed a lawsuit against Kith after the brand allegedly used his “likeness without authorization.”[2] The lawsuit arises out of an alleged photo taken of McPherson by a New York Times journalist at Brooklyn’s Afropunk Festival.[3] McPherson agreed to be photographed and authorized publication of the photo in the New York Times article titled “Street Style: Afropunk 2018.”[4] In the image, McPherson wore “a canary yellow durag with a cape-like train, emblazoned with hundreds of rhinestones.”[5]

         Kith yearly sponsors a Black History Month Artist Series “promoting Black creatives whose works are incorporated into apparel displayed online and in [Kith]’s physical locations and galleries.”[6]  In February 2022, Kith entered into a licensing agreement with Samuel Olayombo for his painting, “Slum Flower Titus,” which depicts “a man wearing a long cape-like pink durag with no rhinestones, in which [Olayombo] represented that he had full rights to license work, that the image was used rightfully and legally, and that no third party would have valid claims based on the artwork.”[7] “Slum Flower Titus” was then featured in Kith’s 2023 Black History Month collection.[8] McPherson contends that “Slum Flower Titus” was adapted from the New Yorks Times photo and that Kith did not compensate or consult with him over the use of his likeness.[9]

Kith filed a motion to dismiss in response to McPherson’s claims, arguing that the use of the painting is protected by the First Amendment and that McPherson is not entitled to compensatory damages, punitive damages, or equitable relief in the form of a public apology.[10] Kith contended that its actions were not knowledgeable, McPherson did not plead any facts suggesting a “fair market value” for the purposes of trade of his likeness, and McPherson did not allege any facts supporting his claim of “severe mental and emotional distress.”[11]  Further, Kith no longer displayed or published the merchandise reflecting the artwork because most of it was promptly removed from its website.[12] The Supreme Court of the State of New York, Kings County granted Kith’s motion to dismiss in regard to McPherson’s claims for equitable relief and punitive damages.[13] The rest of McPherson’s claims, however, survived Kith’s Motion and will continue litigation.[14]

New York Civil Rights Law § 50, effective as of April 20, 2024, prohibits the unauthorized use of a living person’s name, portrait, picture, likeness, or voice for advertising or trade purposes without first obtaining written consent.[15] This statute reflects the increase of likeness and privacy protections on the legal front.[16] As McPherson’s lawsuit progresses, the case underscores the debate over where to draw the line between creative liberty and an individual’s control over the commercial use of their identity.[17]

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[1] See About, Kith, https://kith.com/pages/about (last visited Nov. 14, 2025) (describing founding of Kith brand); see alsoMcPherson v. Kith Retail, LLC, 83 Misc. 3d 1259(A), 2024 WL 3659591, at *1 (N.Y. Sup. Ct. Kings Cty. July 26, 2024) (stating claims against Kith in Kings County Superior Court of New York); see also N.Y. Civ. Rights Law §§ 50–51 (creating right for individual’s to sue if there is unauthorized commercial use of their name, image, or likeness). The Supreme Court in New York is a trial court that “hears cases outside the authority of the lower courts, such as civil matters involving high dollar amounts; divorce, separation and annulment proceedings; and criminal prosecutions of felonies.” New York State Courts: An Introductory Guide, N.Y. State Unified Court Sys. (Oct. 2023), https://ww2.nycourts.gov/sites/default/files/document/files/2023-12/IntroGuidetotheCourtsOct2023.pdf.

[2] McPherson, 2024 WL 3659591, at *1 (summarizing plaintiff’s claims against Kith); see Doree Lewak, Clothing Brand Kith Sued for Using Brooklyn Artist’s Face on $195 Shirts: ‘Mortified,’ New York Post (Feb. 13, 2025), https://nypost.com/2024/02/13/lifestyle/clothing-brand-kith-sued-for-using-brooklyn-artists-face-on-195-shirts-mortified/(noting profession and background of Darryl McPherson).

[3] See McPherson, 2024 WL 3659591, at *1 (describing photo at basis of McPherson’s claims).

[4] See id. (noting agreements between McPherson and New York Times regarding photo).

[5] Id. (describing image of McPherson).

[6] Id. (stating mission and logistics of Kith’s annual Black History Month Artist Series).

[7] Id. (describing licensing agreement representations between Kith and Samuel Olayombo in regards to painting). Kith maintains that they had no knowledge of McPherson’s photo and entered into the agreement with Olayombo in reliance on the Olayombo’s representations in their licensing agreement. Id.

[8] See McPherson, 2024 WL 3659591, at *1 (noting Olayombo’s painting was used in Kith’s collection in stores and online).

[9] See id. (highlighting basis of McPherson’s claim alleging Kith is in violation of New York Civil Rights Law §§ 50–51). The Supreme Court of the State of New York, Kings County noted that “obvious differences” between the New York Times photo and Olayombo’s artwork include “background design and color, durag color and design, skin tone, and choice of glasses/necklace.” Id. at *5. The court acknowledged that the two pieces, however are similar in “framing of the person, how much skin is showing, placement of the durag on the subject’s body, folds of the draped durag, and facial expressions.” Id.

[10] See id. (summarizing Kith's arguments in motion to dismiss).  A party may move for judgment dismissing causes of action asserted against them by filing a motion to dismiss under certain grounds outlined in New York Civil Practice Law and Rules. C.P.L.R. §§ 3211.

[11] See id. (arguing punitive damages and equitable relief do not apply because knowledge element was not satisfied and that McPherson did not allege facts supporting claim)

[12] See id. at *2 (noting McPherson and Kith both admit Kith does not display the contested artwork and merchandise).

[13] See McPherson, 2024 WL 3659591, at 6 (concluding Kith’s motion to dismiss is granted on McPherson’s claims regarding equitable relief and punitive damages). The court concluded that equitable damages were not appropriate in this case because Kith “removed all advertisements and sellable merchandise featuring ‘Slum Flower Titus’ as of February 28, 2023). Id. at 5. The court further concluded that punitive damages were also not appropriate because McPherson did not allege any facts regarding behavior marked by malice, fraud, or a deliberate and reckless disregard. Id.

[14] See id. (denying Kith’s motion to dismiss on remaining claims).

[15] See N.Y. Civ. Rights Law § 50 (outlining statutory prohibitions).

[16] See Proposed Legislation Reflects Growing Concern Over “Deep Fakes”: What Companies Need  to Know, O’Melveny & Myers LLP (May 13, 2025), https://www.omm.com/insights/alerts-publications/proposed-legislation-reflects-growing-concern-over-deep-fakes-what-companies-need-to-know/ (highlighting increase in protections over right of publicity and likeness with rise of AI and online services).

[17] See Jonathan Pryor, McPherson v. Kith and the Reach of New York’s Right of Publicity Law, Krankfurt Kurnit Klein & Selz PC (March 24, 2025), https://ipandmedialaw.fkks.com/post/102k60t/mcpherson-v-kith-and-the-reach-of-new-yorks-right-of-publicity-law (noting case raises questions related to artistic expression and likeness).