unauthorized use of model’s photo for strip club wasn’t false advertising or endorsement

Edmondson v. 2001 Live, Inc., 2019 WL 670201, No. 16-cv-03243-T-17AEP
(M.D. Fla. Jan. 15, 2019)
Edmondson, a model and public figure, sued for the alleged
commercial misappropriation of her image used on 2001 Live’s social media
account promoting its “gentleman’s” club’s live feed of the stage and dressing
room. Edmondson has appeared in various magazines and reality TV episodes,
served as “Playmate of the Month,” and signed as an official model for swimwear
and sports companies. She had 1.6 million Instagram followers, over 41,000
Facebook likes, and over 201,000 Twitter followers.  Defendants used a photo of her with the text:
Cyber-Monday was here, and we got a
little sick of all the “check out this 1//2 price gadget” posts! We want to
give someone something, specifically a FREE 30-day subscription to http://www.2001live.com!
All we need is at least 20 likes for this post by tomorrow morning!
Defendants had outside vendors for social media monitoring,
and their corporate representative testified that he believed those vendors had
the authority and consent to use Edmondson’s image.
The Lanham Act claims failed.  False advertising: The image of her was
literally true/not false; it didn’t identify Edmondson and attribute statements
to her, and it wasn’t altered. Edmondson argued that it necessarily implied her
association with and endorsement and support of the defendants’ “business, the
strip club lifestyle, and activities known to occur on Defendants’ premises.” The
court disagreed; the image was ambiguous because “it provides no explanation or
context for the relationship between the model, Defendants’ establishments,
Defendants’ websites or any subscription service offered by Defendants.”  The image could be misleading, but not
literally false. 
However, there was insufficient evidence of consumer deception.
Edmondson submitted an expert report purporting to show confusion about her
endorsement of defendants. Although the survey was admissible, it wasn’t good
enough to show deception because it didn’t use a control group or have respondents
who were actual patrons of defendants’ services. The group had attended a strip
club in the last two months, but it wasn’t taken from defendants’ client list,
e-mail list, or actual patrons in compiling his survey respondents.  Nor were there any individual statements from
patrons or others who saw the ads and believed that Edmondson endorsed the club
or would be present at any events. 
Separately, there was insufficient evidence of materiality. Ninety
percent of survey respondents said they were more likely to consider the
possibility of attending the club after viewing images with models than they
were to consider it after viewing the same ads but without the models. But that
wasn’t evidence of the materiality of this image because there was no control
group or inclusion of patrons or potential patrons of this strip club.  Further,
the court thought that an expression of likely interest wasn’t the same thing
as actually being likely to visit.  [It’s
not clear to me what would show materiality in a survey, then, unless the court
didn’t like the wishy-washiness of the question and even then it’s hard to
frame something that makes sense; “I definitely would go” is not a realistic
response from a survey-taker.  The real
problem is that the survey did nothing to show that Edmondson’s image mattered
as compared to a properly licensed stock image of a beautiful woman.]
False endorsement also failed as a theory. Edmondson had
standing for this theory because she had “an existing intent to commercialize
an interest in identity.” [The court is quoting other cases but if it’s a
trademark theory she shouldn’t be able to use it without more than intent;
intent to use a mark is not enough to have a protectable mark in any other
context. That said, her activities go beyond intent to active commercialization,
so I don’t think it makes a difference here.]
In a celebrity false endorsement case the most relevant confusion
factors include the strength of mark, the existence or extent of actual
confusion, and defendants’ intent to misappropriate plaintiff’s goodwill.  Edmondson argued that she had a strong mark,
but presented nothing specific about her degree of recognition among defendants’
consumers. The survey didn’t ask whether any respondents recognized her. Strength
favored defendants.
The survey also didn’t show actual confusion; this favored
defendants.
Intent: there was an issue of fact about who created and
uploaded the social media posting and whether or not defendants knew that the
use of the image was unauthorized, “which would belie any intent on their part.
Thus, the Court finds that this factor is neutral.”
Comment: Intent to do what? This gets at a key problem with
some kinds of false endorsement claims. 
Probably defendants didn’t intend to use unauthorized images—but using
stock images to which they had purchased rights would have sent the exact same
message, or not, to consumers about whether
the models therein had endorsed the advertised venues
.  The FTC
thinks
that unidentified models in ads aren’t generally serving as
endorsers, just as models, unless there is some extra reason to think that they’re
doing endorsement work—that extra reason could include having enough of a
reputation that would make them seem to be experts about the factual claims
being made, like a racecar driver making claims about tires. But according to
the FTC, even a well-known entertainer won’t be treated as an endorser under
circumstances that indicate she’s not presenting her own views. 
Taken together, Edmondson’s claim couldn’t survive summary
judgment.

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