Use of photo beyond license window doesn’t create false endorsement claim

Bovinett v. HomeAdvisor, Inc., No. 17 C 6229, 2018 WL
1234963 (N.D. Ill. Mar. 9, 2018)
Bovinett, a model and actor, participated in a photoshoot
for HomeAdvisor. Bovinett’s agent was allegedly assured that the photos would
be used in static form only (i.e., either in print media or as a static image
posted on a website), and would not be incorporated into any video. Two weeks
later, Bovinett’s agent signed a consent and release form stating that Bovinett
agreed to convey his rights in the photos to HomeAdvisor for use “in
advertising, promotions, and any other use, and in any media, desired by
HomeAdvisor in its sole discretion, including but not limited to display on the
HomeAdvisor website, in television commercials, and on the Internet.”
HomeAdvisor’s personnel allegedly assured Bovinett’s agent that notwithstanding
the consent and release language, HomeAdvisor would not put the photos to use
in any video format.  Then it did.
Fraudulent inducement: Claims involving a false statement of
intent regarding future conduct are generally not actionable under Illinois law,
unless they are “particularly egregious” or are part of a larger scheme. These
alleged misrepresentations weren’t particularly egregious, nor did Bovinett
allege a pattern; two different statements about non-video use could in theory
be a pattern, but Bovinett didn’t sufficiently allege the first statement with
specificity.  Nor was fraudulent
concealment properly alleged; this requires that the defendant concealed a
material fact when under a duty to disclose that fact, but some sort of
fiduciary or confidential or other special relationship is required and none
was alleged.
Lanham Act/Illinois Consumer Fraud and Deceptive Business
Practices Act/Illinois Uniform Deceptive Trade Practices Act:  Bovinett failed to allege any false
statement.  And the likely confusion
claims failed because there could be no confusion about Bovinett’s affiliation,
sponsorship, or approval of defendants and/or their activities and services. “Bovinett
admits he agreed to pose as a model for HomeAdvisor’s photoshoot with the
knowledge that HomeAdvisor intended to use those photos in advertising. … [T]he
allegedly tortious commercials might well leave viewers with the impression
that Bovinett endorses HomeAdvisor. But that impression is accurate, at least
as of the time Bovinett sold his rights in these photos, so the impression
cannot confuse anyone.”  The court doesn’t discuss the rump confusion theory that viewers would be
confused about whether he authorized video use—which could hardly be material
to anyone, even if for some extremely unlikely reason the matter occurred to them.

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