Multiple strip clubs in the Northeast are facing lawsuits worth upwards of $2 million over the unauthorized use of models’ photos.
The two dozen models suing, including Tara Leigh Patrick (also known as Carmen Electra) and Cielo Jean “CJ” Gibson, initially sued the strip clubs in federal court in Massachusetts and state court in New York for allegedly using their images commercially without compensation or consent.
The models’ Massachusetts case involves three clubs: The Golden Banana in Peabody, The Squire in Revere, and Ten’s Show Club in Salisbury (owned by D&B Corp., MFRP Corp., and M.J.F. Bowery Corp., respectively). The New York case involves Copacabana Times Square (owned by 760 8th Ave. Rest Inc.).
According to the plaintiffs, the clubs have used their images inappropriately, to “create the false impression with consumers that each model was a stripper at one of the clubs, promoted or endorsed the clubs, or was otherwise associated with the clubs. The models claim that the clubs’ actions amounted to commercial disparagement and violations of their privacy,” as described in the recent Insurance Journal article about the case.
“The models claim that the clubs’ actions amounted to commercial disparagement and violations of their privacy.”
– Andrew Simpson for Insurance Journal
All three of the strip clubs’ insurers—USLI, Blackboard and Watford Specialty—have declined to defend or indemnify the strip clubs with the personal and advertising injury coverage included in their commercial liability policies.
Club owners in both cases have denied the allegations but agreed to monetary judgments and confidentiality agreements in which they assigned all of their claims against the three insurers to the models. On February 2, 2023, the group of models sued in federal court in Massachusetts to collect from insurance carriers. Additionally, according to the Insurance Journal, the women are now suing the insurers in federal court in Boston for breach of contract, claiming that the refusal to defend or indemnify the clubs is a breach of contract.
The models seek the amount of the two judgments in full, with interest and compensation for their legal fees.
“The Massachusetts consent judgment of $1,895,000 is to be shared by a total of 20 models; the New York judgment of $267,500 is for nine models,” reports the Insurance Journal.
This case is still developing, but the outcome can be anticipated: the current $2 million lawsuit is yet another case of copyright violations clubs have faced in recent years over the use of models’ photos. And it’s certainly not the first case in which acclaimed model and actress Carmen Electra has evoked the Lanham Act for, and won.
The Lanham Act, enacted by Congress in 1946, “provides for a national system of trademark registration and protects the owner of a federally registered mark against the use of similar marks if such use is likely to result in consumer confusion, or if the dilution of a famous mark is likely to occur,” according to the Legal Information Institute of Cornell University.
From her ruling in January of 2021, Electra won her case, while the other 10 women involved were denied, because her image was recognizable enough. She’s considered a celebrity, as provided by LawNewz:
Plaintiff Electra has offered persuasive evidence of the strength of her mark. Electra’s uncontroverted resume establishes that she has not just appeared in popular movies and television shows, but had regular and starring roles in them. She is a recording artist that has released a self-titled album under a well-known record label. Brands and businesses have placed value in her appearances to the tune of millions of dollars. These achievements are indicia of a strong mark.
Rights to use a person’s Name-Image-and-Likeness, or NIL, generally fall within two categories of intellectual property: rights of publicity and rights of privacy. Rights of publicity protect commercial value that a person has developed in becoming a celebrity. Rights of publicity can also protect against resulting false impressions created by a seeming endorsement. Rights of privacy can also protect against misappropriation of NIL — typically under the guise of an invasion-of-privacy claim.
One difficulty for professional models such as the plaintiffs here…is that most rights-of-rights of publicity doctrines require focus on celebrity; and ask whether that person’s NIL is identifiable to the consuming public. The ads from the strip club were not intended to indicate that these particular models support the club; rather, the intent was to provide a provocative image.
“The ads from the strip club were not intended to indicate that these particular models support the club; rather, the intent was to provide a provocative image.” – Dennis Crouch of Patently-O
Based on the information available from like cases so far, another victory for Electra is likely. Whether or not the 23 other models can evidence their fame enough for legal copyright protection will direct their cases accordingly.
Read the Insurance Journal Story, the LawNewz story, Crouch’s explication on Patently-O and more on the Legal Information Institute’s interpretation of the Lanham Act.
