A Connecticut federal court refused to dismiss Lanham Act false advertising claims filed by a group of models against two strip clubs that used their images without permission.
Led by self-described “world famous actress, recording artist, and entrepreneur” Carmen Electra, 12 women filed suit against two Mynx Cabaret clubs—Mynx Groton and Mynx Hartford—for posting pictures of them on Twitter, Instagram and Facebook to promote the clubs. This lawsuit was just one of dozens of lawsuits filed by Carmen Electra and other models and actresses against strip clubs around the country.
The plaintiffs alleged that the defendants misappropriated and intentionally altered photographs of the plaintiffs to make it appear as if they worked at the strip clubs, endorsed the clubs, or were otherwise associated or affiliated with the clubs.
The defendants moved to dismiss several of the claims, including false advertising in violation of the Lanham Act, arguing that the plaintiffs insufficiently pled that they suffered any injuries. But the court disagreed, denying the motion.
“Plaintiffs have alleged an injury that has already occurred, damaged their reputation, and allegedly stemmed from the Defendants’ alleged misappropriation of their images and photos, an injury which could be remedied through the awarding of damages,” U.S. District Judge Victor A. Bolden wrote.
“Moreover, Plaintiffs adequately alleged that the challenged advertisements are false because of the allegedly inappropriate association between the Clubs and the Plaintiffs that the advertisements evoke.”
The plaintiffs’ allegations that the misappropriated material affected their personal brands and future employment activities were sufficient to establish an injury, the court said.
Judge Bolden also declined to dismiss the claim of invasion of privacy by false light, which requires that the information be publicly disseminated. He noted that publication on social media websites made it likely the photos would reach the public.
“Plaintiffs have sufficiently alleged that the advertisements reached the general public when the photographs were posted on the social media websites Twitter, Facebook, and Instagram,” the court wrote.
Additional claims for defamation, negligence, and violation of Connecticut’s consumer protection statute also survived. The court did dismiss claims for conversion and quantum.
To read the complaint in Geiger et al v. C&G of Groton, Inc., click here.
Why it matters: The Supreme Court in Lexmark International, Inc. v. Static Control Components, Inc. (572 U.S. 118, 2014) established a uniform false advertising standing requirement under the Lanham Act, stating that “plaintiffs must have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision.” Under this standard, Judge Bolden had little difficulty concluding that the plaintiffs had sufficiently alleged an injury with their claims, as the defendants’ use of the photos infringed on their personal brand and impacted their future employment opportunities. While it is not clear that the false advertising claim will ultimately be sustained for all the plaintiffs, it is important to note that an unauthorized use of a person’s image could result in a federal Lanham Act false advertising claim (in addition to a state right of publicity claim) that can easily survive a motion to dismiss if the person is a celebrity or otherwise has commercial value in his or her image.