You might think that the inaccuracy of the following statement is obvious: “If it’s on the internet, it’s free.”‘ Still, many of today’s internet users, including business owners, seem to believe it and use what they download with litigious results.
There are at least two lawsuits in the Southern District of New York—Veronina v. Scores Holding Company and Taylor v. 44th Enterprises, d/b/a Diamond Club Gentlemen’s Cabaret—that involve the unauthorized use of images downloaded from the internet. Specifically, dozens of women are suing over the use of their photos in advertisements for strip clubs and escort services. (Not surprisingly, both cases are brought by the same attorneys.)
The plaintiffs assert a number of claims, but only some of the claims appear to be viable to me:
Defamation and Libel
In both cases, the claims of defamation and libel were tied to the fact that the plaintiffs’ images were used to publicize purportedly unsavory business. The judge in the Veronina case, however, disagreed with the assertion that being associated with a strip club meant that the plaintiffs are employed there as strippers or something that is defamatory per se. That is, the judge felt that there’s nothing necessarily harmful in being associated with a strip club and granted dismissal of that claim. (I’m not sure if he is right; although it pays respect to all professions, it certainly is a broad view that there is no such thing as “scandalous” anymore and that “anything goes.”)
A claim for trademark infringement seems to suggest that any of the women who are depicted in the ads were associated in the minds of consumers with a particular product, so that the use of their likeness could cause confusion in the marketplace. However, trademark infringement is a poor cause of action for this case, in my opinion, because the images that were used were not associated with any particular source of goods or services—that is, most faces or bodies don’t establish a brand or mark. Absent any “secondary meaning” – that is, a reputation indicating that the image is associated with particular goods or services, like “young actor Daniel Radcliffe, wearing thick broken glasses, equals HARRY POTTER®”—the images are just pictures of people.
Right of Publicity
In New York, the only way that you can use someone’s name or likeness for commercial purposes is if you have their written permission to do so. Plaintiffs argued that using photographs of women downloaded off the internet, without permission, violates their rights under the Civil Rights Law Sections 50 and 51, also known as the right of publicity. (To me, this is the strongest part of the cases; but it only provides for limited damages, and does not provide for attorneys’ fees.)
Deceptive Trade Practices
The consumer protection statute in New York—General Business Law, Section 349—prohibits false advertising. (Not coincidentally, this is an important part of a business model for plaintiffs’ lawyers as it provides for attorney’s fees to the prevailing plaintiff.) In both of these lawsuits, plaintiffs claim the use of their images falsely suggests to the consumer public that if the viewer were to go to the strip club, the consumer is led to believe that he (or she) will see the woman on the billboard or other advertisement. In contrast to the libel or trademark claims, this is a relatively viable use as a cause of action. What else would the images reasonably suggest? That these women are accountants for the strip clubs?
The takeaway is that people should not trust their basest instincts in developing a business model for advertising. That is, the fact that you download pictures off the internet that you find appealing does not mean they should be shared with the general public as a means of advertising your business—unless you also do the right thing: get the written consent of the person whose image you want to use (or the owner of the photo—who hopefully has the model’s consent. But that’s for another day).
Mark S. Kaufman
Kaufman & Kahn
747 Third Avenue
New York, NY 10017
Tel. (212) 293-5556
Fax. (212) 355-5009