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The Honolulu Advertiser
Posted on: Saturday, May 18, 2002

Mistrial declared in surfers' case

Advertiser News Services

LOS ANGELES — Abercrombie & Fitch Co. will have to face a new trial after a judge declared a mistrial in a suit brought by surfers who claimed the retailer used a photograph of them in its catalog without their permission.

U.S. District Judge Manuel Real cited a gossip item in the Los Angeles Times about the trial, which was nearing its conclusion. The interview with one of the surfers took place after Real on Wednesday instructed the parties not to talk to the media.

The article is "provocative and it misstates the facts," Real said, referring to a line in the article that said the surfers were seeking punitive and real damages. The story states that the surfers claim the damages equal the $9 million the company made from catalog sales of the T-shirts and shorts.

Abercrombie, which caters to college-age students, used a photo taken at the 1965 Makaha International Surf Championship in Hawai'i in its Spring 1999 A&F Quarterly. The photo was in a section entitled "Surf Nekkid," which featured models who appeared to be nude.

The surfers claimed that the New Albany, Ohio-based retailer misappropriated their names and likenesses without their permission to sell replicas of T-shirts and floral shorts the surfers wore in the photo. Among the plaintiffs are Paul Strauch, Richard "Buffalo" Keaulana, Ben Aipa and George Downing.

Abercrombie sold about 880 T-shirts and made a profit of about $2,500, according to testimony by Michael Stevenson, Abercrombie's vice president of finance. Brent Blakely, one of the lawyers representing the surfers, said his clients look forward to the retrial "and resolving this matter once and for all."

The plaintiffs are "professional athletes who to varying degrees make their living in the surf industry and have their own professional images to protect," Blakely said.

Abercrombie's lawyer argued throughout the trial that the use of the photograph didn't cause any damage to the surfers.

The surfers testified that "they were bummed, they were angry, but nothing that ties it to damages," Abercrombie attorney Joel Smith said during the trial.

Abercrombie reported annual sales of $1.36 billion last year and net income of $168.7 million.

Real threw the case out in 2000 on several grounds, including Abercrombie's constitutional right to use the photo. The 9th U.S. Circuit Court of Appeals last year overturned that decision and ordered a new trial.