As many hospitality industry owners know, a new breed of lawsuit is targeting the entertainment industries such as restaurants and gentlemen’s clubs. Recently, those establishments that use images from unknown sources for marketing materials are being sued by the individuals depicted in those images. The theory is that by using the images, the clubs are creating the impression that the models at issue support or endorse the club and its activities. Many of these suits have been brought too recently to have a final disposition from the Court as yet, but there has been some indication on how these cases will turn out.
These types of lawsuits are increasing at a significant level and are emboldened by some recent successes. In a recent case in Florida, two models brought a Lanham Act case against a gentlemen’s club for the misappropriation of their likeness for the club’s marketing purposes. The club tried to get the case dismissed saying the Lanham Act only prohibited unlawful competition, and for lack of evidence of actual damages. The Court denied both these arguments stating that as models, the plaintiffs were putting themselves in the marketplace as Dzsex symbolsdz and thereby could be considered competitors of a gentlemen’s club. Moreover, the Court also found that the lack of actual damages was not relevant. While these cases began as mere nuisance or extortion type actions, these cases are being brought with more frequency after being emboldened by Court decisions of this nature.
The scenario is becoming pretty common. A restaurant or gentlemen’s club has some marketing materials designed. Those materials may be a billboard, coupon, brochure or the like. However, the marketing effort uses an image of a person. Often, the club does not know where the image came from. Sometime thereafter, the owner gets a letter from an attorney demanding tens of thousands of dollars per image as compensation for the images use. The owners are now faced with potentially years of litigation and significant costs in defending these claims. Even worse, the statute these cases are brought under, the Lanham Act, provides that the Plaintiff, if they succeed, are entitled to have their attorneys’ fees paid by the Defendant, the club owner.
These claims typically come about because of two scenarios. Either, the club is relying on an outside marketing agency that has not vetted the images they use, or, the club is attempting to do their own marketing. Both these scenarios general involve clubs taking the least-cost alternative.
While copyright law in general is convoluted, when it comes to photography and these kinds of actions, it is really just a matter of contract. Photographers can be hired to take the picture of a model, or a photographer can hire the model. The terms of that transaction is generally dictated by the release, which is a contract. The release can say that the photographer owns the pictures and can do whatever the photographer wants with them. Alternatively, the release can say the model has some rights, all rights, no rights, or can even dictate approval for the use of the image. Generally, professional photographers will have the proper release that denies the model all rights or any say over how the image can be used, unless the model hired the photographer. As such, whether an action exists for the improper use of marketing materials, misappropriation of someone’s likeness, under the Lanham Act is dictated by contract.
When clubs try to take shortcuts in their marketing materials, they often do not have access to this contract. Unfortunately, this contract is the most necessary exhibit in defending against claims under this cause of action. It is unlikely that a club designing its own marketing materials, or using the least-cost alternative, will receive any form of release from images it just gets off the internet. As such, clubs are depriving themselves of the only real defense against these types of claims when these marketing activities are addressed in this way.
Clubs and owners have options that won’t break the bank, but will save on defending against these types of actions. The easiest thing to do is to ask for and actually receive the model release for any photography that intended to be used for commercial purpose. If that release is not available, it should immediately raise a red flag with regards to its use and that particular image should be avoided. Moreover, that release should include several key clauses including a choice of forum provision, as well as provisions regarding copies, electronic copies, and the like.
The best option in terms of protection from such lawsuits is to simply hire a reputable photographer who will be able to provide the necessary releases. Generally, the ultimate cost for using such services, while more than do-it-yourself type marketing, is not prohibitively expensive and is far cheaper than defending against even one of these new lawsuits. As for example, Kikentai Photography (http://www.kikentaiphoto.com) focuses on providing such services and have their services and contact information online.