Tuesday, March 13, 2018

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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