Middle District draws on well-developed body of decisions to deny dismissal bid 

Habeas Corpus?

Back in April 2016, seven professional models, led by Ms. Cielo Jean Gibson, sued a handful of Florida businesses that “[engage] in the business of entertaining its patrons with nude and/or semi-nude dancing and alcohol.” The models, who were not purportedly dancers at the clubs, claimed that the businesses, along with their president and director, Michael Tomkovich, had used their images to promote their clubs without their permission.

After a series of consolidations and one amended complaint, the suit boasted 15 separate defendants, all suing for compensation under the same counts: false advertising and false endorsement under the Lanham Act; and violations of Florida’s right of privacy and Deceptive and Unfair Trade Practices Act, among others.

They’re Back …

Recently, the defendants moved to dismiss the charges, claiming – in what may be a landmark example of self-deprecatory legal argument – that the plaintiffs had failed to state claims on several counts because “no consumer would honestly expect to find any of the plaintiffs at defendants’ strip clubs.”

The court’s decision was a model of judicial efficiency.

“Throughout the Middle District, and elsewhere in Florida, courts have handled a plethora of similar cases involving many of the same plaintiffs, defendants, lawyers, and claims,” the court stated. “Since most of the issues before this Court have already been decided, this Court will adopt portions of those opinions where appropriate.”

The Takeaway

All told, the court cited six separate cases that it believed were recapitulated in the present suit in whole or in part. Armed with these references, the court denied each of the defendant’s motions to dismiss, while also asking for a new amended complaint to simplify the previous 290-plus-page amended complaint filed in August 2016.

In handling the motion to dismiss the false endorsement claim, the court had to decide between conflicting decisions from the earlier cited cases. One previous case pointed out that the plaintiffs had not argued that their own “personas [were] sufficiently distinctive to be protected as common law marks.”

Striking a blow for an oft-maligned profession, the court followed two earlier cases that held “that the plaintiffs’ allegations of substantial modeling careers and social media followings, coupled with their use of social media to advertise, were sufficient to survive a motion to dismiss.”

Advertisers should keep in mind that licensing a photograph from the copyright owner is only part of what is required to use an image in advertising. What is depicted in the photos may be subject to separate copyright (e.g., a painting or mural), and persons depicted have a right to control the commercial use of their image (right of publicity) and to not be falsely associated with a brand, product or service they have not agreed to endorse.