Edmondson, et al. v. Caliente Resorts, LLC, et al. (hereinafter, “Edmondson v. Caliente Resorts”) involves a group of male and female models who allege that the defendants, Caliente Resorts, pirated their images to promote the defendants’ clothing-optional resort in Tampa, Florida. The lead plaintiffs, Jaime Faith Edmondson and Alana Campos, were both Playboy Playmates of the Month in January 2010 and September 2012, respectively.
Using Edmondson v. Caliente Resorts as a case study, this article will explore the rights individuals have in the commercial use of their image and/or likeness and discuss the strength of the facts alleged in support of the right of publicity claim set forth in the Edmondson complaint.
From Privacy to Proprietary — A History of the Right of Publicity
What has become one’s right of publicity was first articulated as a right of privacy in 1890 by Samuel D. Warren and Louis D. Brandeis. This “right” was incorporated into the common law for a number of states and codified by several state statutes as a privacy-oriented cause of action. Initially, this tort remedied the emotional damage caused by associating persons of character with commercial advertisements. By the 1950s, the right of privacy transitioned into a proprietary right where one could protect their name, image, portrait, etc., from unauthorized commercial use. Landmark opinions from the mid-20th century gave individuals (particularly celebrities) an exclusive right to license the use of their identity for commercial promotion.
Currently, nearly half of the states distinctly recognize the right of publicity. Of those, many do not recognize the right by this name, but protect it as a right of privacy. The Restatement Second of Torts recognizes four types of invasions of privacy: (1) intrusion, (2) appropriation of name or likeness, (3) unreasonable publicity and (4) false light, the second being most similar to a violation of one’s right of publicity.
Other states have protected the right of publicity through unfair competition laws. To successfully plead a violation of this right as unfair competition, a plaintiff must show an alleged wrongful attempt to pass off the product as endorsed or produced by the plaintiff.
In some instances, protection may be provided by federal law. If, for example, an individual can establish an aspect of his or her identify as a trademark (e.g., Michael Jordon and the “Jumpman” logo), remedies may be available for the unauthorized use of said mark. Similarly, the Lanham Act also provides protection where a person’s identity was used to falsely advertise a product or designate its origin.
Under the common law, a right of publicity claim will lie if a plaintiff can plead and prove that a defendant used the plaintiff’s identity for a commercial purpose without consent, causing injury or harm. To put it simply, if the purpose is commercial, then consent must be obtained.
An Analysis of the Right of Publicity Claim in Edmondson v. Caliente Resorts
On November 13, 2015, Playboy Playmates and plaintiffs, Jaime Faith Edmondson and Alana Campos, among others (collectively “Plaintiffs”), filed a complaint against Caliente Resorts, LLC dba Caliente Resort and Caliente Vacation Club, LLC (collectively “Defendants”) in the United States District Court for the Middle District of Florida (Tampa). The plaintiffs’ complaint asserts the same nine causes of action per plaintiff, two of which include the alleged violation of the plaintiffs’ publicity rights (statutory and common law).
The defendants own and operate clothing-optional resorts in Tampa, Florida, and the Dominican Republic. They host thousands of guests throughout the year who flock to their resorts for parties, outings, events, activities, etc. The defendants’ market their resorts as high-end, luxury retreats for the seasoned naturalist and first-time nudist alike.
The plaintiffs claim that the defendants published their images, likeness or identity on their website and social media outlets in order to promote Caliente Resort (Tampa) and its activities. The plaintiffs further claim that the defendants’ use of their images and/or likeness was without consent and jeopardized each plaintiff’s image, brand and marketability.
In their motion to dismiss the plaintiffs’ complaint, the defendants argued that their use of the plaintiffs’ images and/or likeness was not for a commercial purpose. Instead, they claimed to have used the plaintiffs’ images for an expressive purpose, i.e., the promotion of an event called the “Aahz Party,” which was being hosted by a third party at their Tampa resort. The defendants argued that a party, in and of itself, was not a commercial activity. They explained that they did not use the plaintiffs’ images to directly promote their resort; rather, the images were used to promote the Aahz Party, which happened to be held at their resort.
The plaintiffs argued in opposition that the defendants’ advertisements demonstrate repeated use of each respective plaintiff’s image, likeness or identity to market the defendants’ resort. For instance, the advertisements directed actual and prospective party goers to the defendants’ website and also provided the resort’s telephone number for reservations. The advertisements promoted the defendants’ resort, advertised prices for staying at the resort to attend events like the Aahz Party, advertised prices to attend the event without an overnight stay, and advertised that the resort would offer discounted rates for overnight stays for such events, all of which were in line with the defendants’ business and business operations. As alleged in the plaintiffs’ complaint, the defendants run a private business and advertise their resort and events at the resort for recompense, which is undoubtedly a commercial purpose.
The Florida State Legislature codified an individual’s publicity rights through Florida Statute 540.08 – Unauthorized Publication of Name of Likeness. Section 540.08 states in a pertinent part that:
“No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use given by […] such person.”
As the plaintiffs pointed out in their opposition, Florida Statute 540.08 considers the act of advertising for a commercial purpose to fall within the purview of the statute, whereas expressive works, such as a motion picture, fall outside the scope of the statute.
Assuming the plaintiffs’ allegations are true, the defendants used each plaintiff’s image or likeness without his or her consent to advertise their resort by promoting a party being held at their resort. As opposed to using images of actual guests to promote the event, the plaintiffs’ images were used because they are attractive individuals who look good naked, thereby generating interest in the party and revenue for the resort. The plaintiffs can cement their claims should they be able to produce evidence demonstrating a history of getting paid licensing fees for use of their images in connection with similar types of promotional activities. Due to the celebrity associated with the lead plaintiffs, it is foreseeable the entire group of plaintiffs will be able to produce the evidence needed to substantiate their publicity claims. It is for these reasons that the plaintiffs appear to have a legitimate right of publicity claim against the defendants. At the very least, it appears the District Court correctly denied the defendants’ motion to dismiss the plaintiffs’ second cause of action for violation of their publicity rights under Florida Statute 540.08.