social media posts using models’ images could be false advertising etc.

Two cases in this burgeoning genre, with different results on conversion claims but otherwise similarly highly favorable for the plaintiffs, including on statute of limitations/single publication rulings.

Moreland v. Beso Lounge & Restaurant LLC, 2020 WL
5302312, No. 19-cv-00958 (VLB) (D. Conn. Sept. 4, 2020)

Plaintiffs, professional models, plausibly stated a false
advertising claim for unauthorized use of their images by alleging that their
reputations required selectivity about the companies/brands for which they
modeled. The court accepted the failure to pay them as injury in fact (though
it’s not Lanham Act injury) and also accepted the allegation that “any improper
or unauthorized use of their [i]mages substantially injures their careers …
insofar as each of Plaintiffs’ [i]mages have been associated with a night club,
and the implication of Defendants’ use of Plaintiffs’ [i]mages is that they are
employees, endorse a night club, or are otherwise associated or affiliated with
a night club.”

False light claims also survived; damage isn’t an element of
the claim, and false perceptions that plaintiffs work at or endorse a night
club could be highly offensive to a reasonable person because plaintiffs
alleged that clients might refuse to hire them as a result.

CUTPA (state consumer protection law) claims similarly
survived; plaintiffs alleged an “ascertainable” loss. In what can only be
described as cause-of-action stampeding, the court also refused to dismiss
conversion claims based on copying photos, even though (a) that’s clearly
preempted by copyright law, and (b) conversion doesn’t make sense for copies
anyway. Relying on very different cases (e.g., misappropriation of domain
names, which are exclusive under the DNS), the court ruled that, “to the extent
that embodiment of intangible rights in a document is required, Plaintiffs have
alleged that their intangible rights were reduced to documents, namely, their
photographs” and “Defendants allegedly deprived Plaintiffs of the right to
choose how their images would be used and of the value of their use,” conflating
“image” with the digital copies. Urgh.

On statute of limitations issues, the court declined to find
a presumption of laches for the Lanham Act claim despite some of the initial
publication dates being more than 3 years before suit (3 years being the most
analogous state limitations period, borrowed by the Lanham Act). It wasn’t
clear when plaintiffs knew or had reason to know of the injury.

For the appropriation/false light claims, the court declined
to apply the single publication rule and instead found that the continuing
course of conduct doctrine allowed the claims to persist, given the allegations
that the uses occurred “over time” and that the images were “republicized … so
as to reach a new audience and/or promote a different product.”  Given the allegations that the posts were hard
for the plaintiffs to find because they were “pushed down” by new social media
posts from defendants, one wonders what damages could be shown over time/within
the limitations period, but in its CUTPA discussion the court highlighted the
fact-intensive nature of that query.

Souza v. Algoo Realty, LLC, 2020 WL 5300925, No. 19-cv-00863
(MPS) (D. Conn. Sept. 4, 2020)

Another models v. restaurant/nightclub case with very
favorable rulings for the plaintiffs (at the motion to dismiss stage). This one
seems potentially stronger as a false endorsement claim than some others given
the allegations that their images were altered/combined with actual images of
patrons or performers at the restaurant. Notably, the court accepts allegations
of harm to their reputations, including for false light claims, even though the
defendant doesn’t offer nude or semi-nude performances. The offensiveness was
in the alleged alteration of plaintiffs’ images “so as to reach a new audience
and/or promote a different product,” and the allegation that their
“[a]ffiliation with a night club could lead to significant potential career and
personal damage to a professional model because it could lead other clients to
refuse to work with her or drop her as a model.” The court found this a “close
call,” but ok for a motion to dismiss to allege that a reasonable person “would
be highly offended by such an implied connection.”

Here, the conversion claim failed because plaintiffs didn’t
plead how defendants’ use excluded them from their ownership rights. “The
Plaintiffs do not allege that they are unable to use their images as a result
of the Defendants’ alleged conversion.”

from Blogger

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