by Dennis Crouch
Rights to use a person’s Name-Image-and-Likeness or NIL generally fall within two categories of intellectual property: rights of publicity and rights of privacy.
- Rights of publicity protect commercial value that a person has developed in becoming a celebrity. Rights of publicity can also protect against resulting false impressions created by a seeming endorsement.
- Rights of privacy can also protect against misappropriation of NIL — typically under the guise of an invasion-of-privacy claim.
The pending case of Gibson v. RPS Holdings LLC, 5:21-cv-00416 (E.D.N.C. 2023) involves a set of thirteen different professional models whose images were allegedly used without their permission to advertise for the Capital Cabaret, a strip club halfway between Raleigh & Durham, North Carolina. None of the models have any history with the club. Apparently, the club obtained photos of the models; and then edited them into advertisements for pubilcation on Facebook, Instagram and other online media.
One difficulty for professional models such as the plaintiffs here is that copyright the photographic images is typically held by the photographers, not the models. But, modeling agreements also regularly include limited licenses regarding how (and for how long) the images will be used.
In Gibson, the plaintiffs have sued under both the Lanham Act and N.C. state law:
- Section 43 of the Lanham Act, 15 U.S.C. § 1125(a)(1) for misrepresentation of sponsorship (False Advertising + False Association).
- N.C. common law right of privacy – misappropriation.
- N.C. Unfair & Deceptive Trade Practices.
- N.C. Defamation.
The case is moving forward and is at the close of discovery (March 31, 2023) with summary judgment motions due at the end of April.
Most recently, plaintiffs filed a motion to quash a subpoena seeking information on exactly how the attorneys “discovered, came across, learned of, and/or otherwise became aware of” the advertisements. The motion argues that this information is protected by attorney client privilege as well as work product. The defense argues that this information is important for its laches defenses.
I mentioned the copyright difficulty above. A second difficulty for the models in this case is that most rights-of-rights of publicity doctrines require focus on celebrity; and ask whether that person’s NIL is identifiable to the consuming public. I have to admit that I don’t really know anything about the modeling industry, but I don’t believe think that these models are household celebrities. The ads from the strip club were not intended to indicate that these particular models support the club; rather, the intent was to provide a provocative image.
Of course the misappropriation of a completely anonymous face could not form the basis for a false endorsement claim, because consumers would not infer that an unknown model was ‘endorsing’ a product as opposed to lending her image to a company for a fee.
Bondar v. LASplash Cosmetics, No. 12-cv-1417, 2012 WL 6150859, at *7 (S.D.N.Y. Dec. 11, 2012) quoted in Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233, 258 (2d Cir. 2021), cert. denied, 211 L. Ed. 2d 352 (Nov. 22, 2021). The Carmen Electra case was also a suit by models against strip clubs with the models represented by the same law firm. (The Casas Law Firm). In their denied petition for certiorari, the plaintiffs asked:
Must an individual prove they have a commercial interest in their identity, or must a person prove they are recognizable, publicly prominent, or a celebrity, to bring and sustain a claim under 15 U.S.C. § 1125(a)?
Petition. The Electra case was decided by the 2nd Circuit. However, other circuits have rejected the celebrity requirement as improperly grafted-onto the statute.