Monday, March 18, 2019

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! 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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