Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
Professional models from across the globe are suing four Indiana strip clubs for using their photos without permission to advertise establishments located in Fort Wayne, Hammond and Indianapolis.
But some intellectual property law experts aren’t so sure the models will be able to procure the substantial damages they are seeking.
Collectively, the lawsuits are about “a strip club’s unauthorized use of several professional models’ images and likenesses in various advertisements to promote the strip club’s business interests in violation of the models’ rights under federal and state law and for which the models are entitled to damages and injunctive relief,” according to filings in each case, which are all represented by the same attorneys.
The dozens of models named in the respective lawsuits hail from states across the country as well as the United Kingdom and Australia. The women allege the clubs violated their rights under the federal Lanham Act and Indiana’s Right of Publicity statute.
In the four Indiana suits — three brought before the U.S. District Court for the Northern District of Indiana and one before the U.S. District Court for the Southern District of Indiana — the women claim their modeling reputation impacts the commercial value of their images and likeness, therefore entitling them to the right to control the commercial exploitation of their name, image, likeness and advertising ideas.
The unauthorized use of their image or likeness, the suits assert, can “diminish and disparage the goodwill and reputation each Plaintiff has built and the amount of compensation each Plaintiff can command” for the licensed and authorized use of those images. Thus, the models claim the strip clubs’ use of their images harmed and damaged them by using the image for the defendants’ own advertisements without payment or consent, “fraudulently representing to the public that the Plaintiffs endorse, approve, or agreed to advertise” for the clubs.
The cases in the Northern District are Burciaga, et al v. B & S of Fort Wayne Inc, et al., 1:20-cv-00367, Skinner, et al. v. Sahara, Inc., 2:20-cv-00374, and Cerny, et al. v. B&B Operations, LLC, et al., 1:20-cv-00401. The Southern District case is Archuletta, et al. v. MER Corp., 1:20-cv-02264. Named clubs include Club 44 and Showgirl clubs in Fort Wayne, Fantasy Gentlemen’s Club in Hammond and Dancers Showclub in Indianapolis.
As part of their demand for relief, the models seek a permanent injunction barring the clubs from using their images or likenesses in advertisements or other professional material for the clubs, “including but not limited to an order requiring the Defendant to remove all uses of the Plaintiffs’ images and likenesses from Defendant’s Club’s social media accounts.”
Additionally, the women demand a jury trial, “actual consequential, and incidental damages in an amount to be proven at trial,” and the amount due, owing and unpaid to the models “representing the fair market value compensation” they would have otherwise received for uses of their images and likeness, among other things.
Indianapolis attorney Brad Catlin and Michigan attorney Edmund Aronowitz, who represent the women in all four cases, declined to comment on any of the cases. Similarly, attorneys representing the strip clubs did not respond to requests for comment. Defendants had not filed replies in any of the cases at IL deadline.
Spotting a trend
When he noticed the string of cases, Indiana intellectual property attorney and blogger Paul Overhauser thought the pattern was a little unusual.
“Initially they don’t seem to be the type of cases that would be worthy of filing a federal lawsuit over. They normally could be resolved without a complaint, even if there is some exchange of a modeling fee. Bundling together so many plaintiffs makes it much more costly to defend the case if there are all of these plaintiffs from all over the country,” said Overhauser, who is not involved in any of the cases.
He said that when there is a case with a business that’s using a picture of someone they shouldn’t be using, the attorneys for the plaintiff will usually call the business, say “stop using it,” and that’s the end of it.
But as he read deeper into the filings, Overhauser realized some names emerged as plaintiffs in more than one of the Indiana cases. Further research uncovered the same women named as plaintiffs in similar lawsuits across the country, brought against various clubs, sports bars and insurance companies.
“That is what I thought was really curious,” he said.
For example, Overhauser noted that professional model Jessica Hinton appears as a plaintiff in many similar cases across the country, including a case brought before the U.S. District Court for the Eastern District of New York. Parties in that case entered into a settlement agreement awarding Hinton and other models a stipulated judgment of $200,000 after two insurance companies denied coverage.
Right of publicity
Another aspect of the cases Overhauser found curious were claims asserted by the plaintiffs under Indiana’s Right of Publicity statute, which he noted is widely regarded as the most powerful right of publicity statute of any state in the country.
The statute protects the unauthorized commercial use of an individual’s name, image, likeness, distinguishing characteristics, gestures and mannerisms, according to Wes Zirkle of Zirkle Advisors. Simply put, you can’t use someone else’s image or likeness without their permission.
“The duration of the protection is during the course of someone’s life and for 100 years thereafter,” Zirkle said. “It has a clearer articulation of what a publicity right is than other jurisdictions and therefore leaves less guesswork in trying to determine how you identify an individual.”
For the cases at hand, Zirkle said he thinks the claims alleged by the women are a “bit of a long day.”
“The law has struggled a little bit with social media and its use, but I think by and large, if this case were sent to a jury to determine on the sole issue of whether or not these uses are commercial, I think that they would say yes. But that does not mean that the damages are substantial,” he said.
“Just from reading the complaint, if I take its facts on its own face, it sounds like those clubs misappropriated their image,” Zirkle continued. If that’s the case, he said, the question is how much in damages the models are entitled to.
“And that’s what I really question whether they are very much,” he said. “If their objective is simply to make this use stop and they wanted to make a national statement to others that ‘we as individuals take our rights seriously,’ I think it’s a fine suit. But if the objective is to make a substantial amount of money, it’s a much more challenging suit from the plaintiffs’ standpoint.”
Overhauser agreed, noting that typically the damages for cases like these would not be substantial.
“But if you get into a situation like has happened with Ms. Hinton and her case in the Eastern District of New York where you enter into a consent judgment for $200,000, well, that is a lot of money,” Overhauser said.
“If the insurance company has been put on notice of the lawsuit and they have declined to defend, then there is a principle of insurance coverage law that says if they are found to have wrongfully withheld coverage, that they are estopped from challenging the amount of damages that was entered into the underlying litigation.”•
Please enable JavaScript to view this content.