Davalos et al. v. Bay Watch, Inc. et al. (D. Mass. 21-cv-11075); Bernstein et al. v. Mardi Gras Entertainment Inc. et al. (D. Mass. 21-cv-30078); Van Derham et al. v. Speakeasy Group, Inc. et al. (D. Mass. 21-cv-11092); Tara Leigh Patrick a/k/a Carmen Electra et al. v. 15 LaGrange Street Corporation et a. (D. Mass. 21-cv-11093); Moreland et al. v. Father & Son Enterprises, Inc. et al. (D. Mass. 21-cv-11096); Canas et al. v. Dartmouth Clubs, Inc. et al. (D. Mass. 21-cv-11097).

  • July 6, 2021

Another series of lawsuits was filed by various models and celebrities against a set of Massachusetts strip clubs, asserting that the clubs were using photographs of the plaintiff models in their advertisements and falsely suggesting that the models would be appearing at the clubs.  There have been a stream of such lawsuits over the past year, with the suits naming the organization that owns the club as well as the owners and/or directors of the clubs individually.  The complaints assert false advertising and false association under the Lanham Act, violation of the statutory (M.G.L. c. 214, Section 1B) and common law rights to privacy, statutory unauthorized use of an individual’s name, portrait or picture under M.G.L. c. 214 Section 3A, violation of common law rights to publicity, violation of C. 93A, defamation, negligence and Respondeat Superior, conversion, unjust enrichment and quantum meruit.

These cases are becoming more common, with increasingly more sophisticated image detection software scouring the internet, including social media such as Facebook, Twitter, and the like.  The individual plaintiffs, while not always together on every case, are parties to a significant number of cases nationwide, with some named as plaintiffs in thirty or more cases.  Some significant successes hav been reported, including a $1.9 million settlement between 28 models and Providence, Rhode Island club Wonderland, with the payment coming from Wonderland’s insurer – likely covered by an advertising injury policy.  Others have not been so fortunate, with some states (such as New York) requiring a certain level of fame before a person’s image becomes protectible under trademark law. 

I note that some of the individually-named defendants in Massachusetts have successfully moved to dismiss the claims against them for failing to meet the Twombly/Iqbal pleading standard, which requires sufficient factual allegations to state a claim on which relief could be granted, with courts requiring more than simple ownership and general control to hold the individuals liable.

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