Wednesday, September 09, 2020

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.”

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