The unauthorized use of a model's picture in advertising is usually both a right of publicity claim under State law and a Federal claim under the Lanham Act's claim for a likelihood of confusion over whether the model authorized her inclusion in the ad or endorses the product or service. In some instances where only something other than name picture or likeness, such as costume or context, creates the association with a celebrity, a right of publicity claim might be dismissed, while the tough question of what consumers understand of the nature of the association may survive for trial. (The famous case of the Naked Cowboy v. the Blue M&M). But in a recent decision in Lancaster v. The Bottle Club, a Federal Court in Florida granted summary judgment dismissing the Lanham Act claims brought by several models based on the admitted unauthorized use of their photographs in ads, and left the models to start over in state court to pursue their state law right of publicity claims.

The models whose stock photographs were obtained from a website and used to advertise "adult-oriented businesses" chose to make a Federal case out of the affront to their integrity and dignity by starting with Federal claims for false advertising and false association under the Federal trademark statute, the Lanham Act. However, after the Court ruled that consumer survey evidence to support these contentions was submitted too late to be considered, the Court found that just being pictured in the advertising was not sufficient to establish that viewers would assume that the model was in fact a user of the advertised service, personally endorsed the advertised services, or necessarily authorized the use of her photograph . Consequently, the models failed to establish any false advertising or false endorsement claim under Federal Law, and the court declined to consider any State law claims, including right of publicity.

Take away: Consumer perception evidence may be required to prove a Lanham Act Claim where an authorized use of a person in advertising is conceded.