False endorsement: some bad questions to ask in a survey

Gibson v. BTS North, Inc., 2018 WL 888872, No. 16-24548
(S.D. Fla. Feb. 14, 2018)
Plaintiffs are professional models, actresses, and/or
businesswoman who earn their livings by promoting her image, likeness, and/or
identity to select clients, commercial brands, media, and entertainment outlets
and carefully controlling their images. Defendants operate three “full friction
and full nudity” gentlemen’s clubs. Each plaintiff had one or more of her
images used on at least one of the Club’s Facebook pages without her consent.  Defendants’ corporate representative testified
that they never asked the plaintiffs for their consent, and that he assumed J
Dog Media, a separate company thad does the ads for the Clubs, created the
graphic designs, backed up by a declaration from the owner of J Dog.
He stated that “in procuring the images at issue, these
images were not altered in any way, and were located on other Facebook sites
and pages, none of which were Facebook pages associated with, or describing by
name, any Plaintiff, and all of which invited ‘sharing’ on the internet.” He
said he chose the images “solely because the images depicted attractive
females, and not on the basis of any person’s identity, celebrity, popularity,
or any personal basis or characteristic associated with any particular
Plaintiffs alleged that the uses caused affiliation
confusion, and submitted a survey with three representative images from defendants’
ads, two of which featured a named plaintiff. The survey included only “adult
(21 and over) male Florida residents who had patronized a Bikini
Bar/Gentleman’s Club/Strip Club in the past two years.” The expert testified
that 94% of respondents thought the models in the advertisements had agreed to
be in the advertisements; 91% of respondents thought the models agreed to
promote the Club in the advertising; 9 out of 10 “thought the models represent
the lifestyle to which the Club is oriented” [query: how could this be verified
or falsified, ever?]; almost 4 out of 5 “thought the models enjoyed a lifestyle
like that reflected in the advertising and might participate in some of the
events described in the advertising” [mostly the same query]; 75% thought it
was “extremely likely” the models were used “to make them think they
represented the kind of women they would expect to see at the club,” and
another 20% thought it was “somewhat likely” [ditto].
Lanham Act false advertising: Plaintiffs argued literal
falsity in that the ads “necessarily conveyed or implied each Plaintiff’s
association with[,] endorsement of, and support for the Clubs.” They didn’t
show that the images were altered, and since they were actual images of the
plaintiffs, they weren’t literally false. “[A]n unauthorized use of a
photograph is not a literally false statement, even if the image was altered,”
without more. The ads could still be misleading, as shown by evidence of
Defendanted contest the validity of the survey based on the
fact that the survey had a small sample size, included images of other women
used by other clubs, and used only two of the 57 advertisements at issue in
this case representing only two (or possibly three) of the thirteen plaintiffs.
These “[c]hallenges to survey methodology go to the weight given the survey,
not its admissibility” and a reasonable juror could find the survey
unpersuasive, thus preventing summary judgment for plaintiffs.  Further, they didn’t explain how the alleged
deception had a material effect on purchasing decisions.  “While the survey found ‘[j]ust over 90%’ of
the participants were more likely to be interested in patronizing Defendants by
seeing the ads with Plaintiffs than they were from seeing the same
advertisements without Plaintiffs, viewed in the light most favorable to
Defendants, this does not mean consumers would actually be more likely to
frequent Defendants’ establishments based on seeing Plaintiffs in the
advertisements.”  [Yeah, not necessarily
the right control for materiality.] 
Finally, plaintiffs didn’t show how they’d been or were likely to be
injured—an alleged right to compensation for the fair market value of the use
of their image had “nothing to do” with whether the use was misleading and wasn’t
necessarily proximately caused by the misleadingness.
False endorsement: this is the same as TM infringement/false
association. Again, the court denied summary judgment to plaintiffs.  Plaintiffs argued that their images were “by
definition” inherently distinctive [this seems wrong under Wal-Mart; surely the
plaintiffs’ images were either product design or close enough to get the
benefit of the rule that in close cases courts should require secondary
meaning], or had acquired distinctiveness.
Defendants argued that plaintiffs weren’t celebrities, which
the court construed as an argument that their marks weren’t strong.  Interestingly, the court said that the
standard secondary meaning factors “do not lend themselves as easily to
Plaintiffs whose mark is their identity rather than their name,” which may be
to say that identity isn’t really the proper subject matter of a “mark” [paging
Mark McKenna], or in other words you can’t necessarily tell what in a
plaintiff’s metaphorical “image” is performing the source identification
function and what is just a non-trademark kind of distinctiveness (like my
distinctive writing quirks).  The court
didn’t require much definition from plaintiffs: “While Plaintiffs never
explicitly state what exactly their brands represent, Plaintiffs’ declarations
satisfy the first three factors [of length & nature of use, nature &
extent of advertising and promotion, and & efforts to promote a conscious
association between the mark and the business].”  But how can this be a coherent sentence?  What
have they used for so long?  What is the mark with which they promote
an association and what is the business, if not the “brand” itself?  Can a plaintiff be a mark for herself?
Regardless, plaintiffs provided no evidence of secondary
meaning/public recognition, meaning that this factor was neutral in the light
most favorable to defendants.
Similarity was “about as strong as can be.”  Similarity of goods/services, sales outlets,
and customer base: plaintiffs’ lawsuit was premised on the idea that they’d
never have endorsed these uses, leading service dissimilarity to weigh in
defendants’ favor.  But plaintiffs argued
that they vie for the same dollars as Defendants because “Defendants’ customers
also fall within a subset of the demographic that is interested in beautiful
women.” Plus the parties both use websites and social media such as Twitter and
Facebook to reach their target audience. [That is, they exist in 2018.]  So that weighed in plaintiffs’ favor.
Intent: it was difficult to determine whether defendants
intended to capitalize on plaintiffs’ goodwill. 
If they didn’t even create the ads, they couldn’t have had bad intent,
and J Dog’s owner said he chose the images because they were pretty, not on the
basis of identity/popularity; this favored defendants.
Actual confusion: see above about the survey, which didn’t
ask if respondents recognized the plaintiffs.
Statutory and common law misappropriation of likeness:
Although “[r]epublication of facts already publicized elsewhere cannot provide
a basis for an invasion of privacy claim,” the harm of misappropriation is
different; plaintiffs secured summary judgment on these claims. 
Civil theft and conversion: Plaintiffs didn’t show the
requisite intent to deprive them of the use of the images; at most there was a
fact issue about who created the images. A reasonable finder of fact could
determine that neither defendants nor J Dog intended to deprive plaintiffs of
their images or any rights to them. [Also, depriving plaintiffs of the right to
control all uses of their images is not the same thing as depriving them of
their own possession of copies of the images, which is what conversion
requires, especially to avoid copyright preemption. This should have been
summary judgment for defendants, though it’s not clear they moved for that.]
Unjust enrichment: plaintiffs didn’t argue that the use of
their images increased defendants’ customers or otherwise led to a gain, but
that use of their images constituted a voluntary acceptance and retention of
the benefit of using their photos without paying any fee.  The court wasn’t convinced that it would be
inequitable to let them retain this benefit, especially that the
misappropriation of likeness claims would provide compensation for the exact
same harm.
Damages for misappropriation of likeness: Plaintiffs claimed
they were entitled to the fair market value for the use of their images and
reasonable royalties, though the court found their expert’s report
problematic.  E.g., the expert valued one
plaintiff’s “working day rate” at $5,000 without explaining what it meant. The
court [wrongly I think] presumed that this was the fair market value for the
use of each image; the same image was used three times [which would be one
photo shoot, not three] but then the expert calculated actual damages as
$30,000. Another plaintiff was credited with a “working day rate” of $100,000;
for three different images and eight total uses, the expert calculated actual
damages at $900,000. The expert didn’t sufficiently explain his calculations to
avoid speculativeness.

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