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Gibson v. BTS North Inc.

United States District Court, S.D. Florida

February 14, 2018

BTS NORTH, INC., doing business as Booby Trap, T.K. PROMOTIONS, INC., doing business as Booby Trap, et al., Defendants.



         THIS MATTER is before me on Plaintiffs' Motion for Summary Judgment

         (“Motion”) (ECF No. 38), which includes Plaintiffs' Statement of Undisputed Facts as required by Local Rule 56.1. Defendants filed a Response in Opposition (ECF No. 41), as well as a separate Response to Plaintiffs' Statement of Undisputed Facts and Additional Facts in Opposition (ECF No. 42). Plaintiffs filed a timely Reply (ECF No. 43). Having carefully considered the parties' briefs, the record, and the relevant legal authorities, Plaintiffs' Motion for Summary Judgment is granted in part and denied in part.

         I. BACKGROUND

         Plaintiffs are Cielo Jean Gibson, Cora Skinner, Vivian Kindle, Alicia Whitten, Ashley Vickers, Dessie Mitcheson, Devin Justine Takeguma, Eva Pepaj, Jessica Burciaga, Lina Posada, Marketa Kazdova, Paola Canas, and Tina Quarles. Each Plaintiff is a professional model, actress, and/or businesswoman who earns her living by promoting her image, likeness, and/or identity to select clients, commercial brands, media, and entertainment outlets. Motion, ¶ 1.[1] Each Plaintiff relies on her professional reputation and brand for modeling, acting, and other professional opportunities and has worked to establish herself as reliable, reputable, and professional. Id. at ¶¶ 2-3. Each Plaintiff aims to control the use and dissemination of her image and participates in the negotiation, vetting, and selection of her professional engagements. Id. at ¶ 4. Each Plaintiff has submitted a declaration stating she has been vigilant in building and protecting her brand from harm, taint, or other diminution. Id. When marketing and promoting their images, Plaintiffs negotiate and expressly grant authority for the use of their image pursuant to agreed-upon terms, conditions and compensation. Id. at 5.

         Defendants are corporate entities BTS North, Inc., T.K. Promotions, Inc., P.T.G. Entertainment, Inc., and Booby Trap, Inc., each of which owns or co-owns and operates one of three “full friction and full nudity” gentlemen's clubs (“Clubs”). Id. at ¶¶ 12-14. Each Club maintains a Facebook page, which advertises its business, events, and parties. Id. Each Plaintiff had one or more of her images used on at least one of the Club's Facebook pages without her consent. Id. at ¶¶ 6-9. Defendants did not compensate any Plaintiff for the use of any of their images. See generally Plaintiffs' Decl., 1-13. Each Plaintiff has affirmed that she was never employed by, contracted with, or has otherwise given permission or consent to Defendants to use her image in any way to advertise, promote, market, or endorse “Defendants' full friction and full nudity lifestyle activities and business.” Motion, ¶ 6. Even if asked in advance by Defendants, each Plaintiff has declared she would not, under any circumstances and regardless of the compensation offered, have permitted or consented to the use of her image by Defendants to advertise, promote, market, or endorse Defendants' lifestyle activities and business. Id. at ¶ 8.

         Plaintiffs claim that Defendants knew they used Plaintiffs' images without authorization. For support, they point to the deposition testimony of Defendants' corporate representative, Philip Gori, and Defendants' office manager and bookkeeper, Patricia Pettinato. When asked during his deposition if any of the Defendants ever contacted any of the Plaintiffs to get their consent, if they ever negotiated with the Plaintiffs to compensate them, or if anyone obtained Plaintiffs' consent on behalf of Defendants, Mr. Gori testified, “Never happened.” Gori Depo, 122:13-124:5. However, Mr. Gori also testified that he assumed J Dog Media, Inc. (“J Dog Media”), a separate company, created the graphic designs. Id. at 122:13-21. Mr. Gori also testified in his deposition that J Dog Media does the advertisements for the Clubs, and to him, advertisements means radio and print. Gori Depo, 50:18-51:4. Plaintiffs then point to two hundred ninety-eight J Dog Media invoices that do not contain a specific charge for social media advertising, posting, or promotion. Motion, ¶ 25. Ms. Pettinato testified that no one at the Clubs has any correspondence from Plaintiffs. Pettinato Depo., 12:11-23. She also testified that the Club managers decide on promotions such as drink specials and parties; however, contrary to Plaintiffs' assertions in their Motion, Ms. Pettinato did not testify that the managers are generally responsible for creating social media advertising. Id. 53:21-57:20.

         Defendants contend they had no knowledge regarding the creation of the advertisements, including that the use of Plaintiffs' images in the advertisements was unauthorized. Defendants point to a declaration of Mr. Gori, which states J Dog Media, a third party contractor, created the advertisements. Gori Decl., ¶ 2, 7. In addition, the owner of J Dog Media, Darren Franclemont, submitted a declaration that J Dog Media is a separate company that provides advertising of all kinds for mainstream commercial businesses and “Gentlemen's Clubs, ” including the Defendants in this case. Franclemont Decl., ¶¶ 1, 3. Mr. Franclemont stated that J Dog Media prepared the Facebook pages at issue and said no one associated with Defendants directed him to use specific individuals for any of the advertisements. Id. at ¶¶ 3, 4. Further, he claims that “in procuring the images at issue, these images were not altered in any way, and were located on other Facebook sites and pages, none of which were Facebook pages associated with, or describing by name, any Plaintiff, and all of which invited ‘sharing' on the internet.” Id. at ¶ 8. Mr. Franclemont chose the images “solely because the images depicted attractive females, and not on the basis of any person's identity, celebrity, popularity, or any personal basis or characteristic associated with any particular Plaintiff.” Id. at ¶ 9.

         Plaintiffs maintain that the use of their images confused consumers into thinking that they were affiliated with Defendants and their Clubs' activities. To support their claim of consumer confusion, Plaintiffs submitted an expert report from Dr. Martin Buncher, which includes a consumer survey. Buncher Rep., ECF No. 38-16. The consumer survey used three representative images from Defendants' advertisements. Id. at 8, 68-78. Only two of the images used were attached to the Complaint and are at issue in this case. ECF Nos. 1-2, 1-9. It is not readily apparent if the woman in the third image is one of the named Plaintiffs in this case, or which one she may be. The population surveyed included only “adult (21 and over) male Florida residents who had patronized a Bikini Bar/Gentleman's Club/Strip Club in the past two years.” Buncher Rep. at 9. The survey itself included advertisements from two other clubs, although the collected data was disaggregated. Id. at 12-15, 49-86. According to the survey data, 94% of respondents thought the models in the advertisements had agreed to be in the advertisements. Id. at 12. 91% of respondents thought the models agreed to promote the Club in the advertising. Id. Nine out of ten respondents thought the models represent the lifestyle to which the Club is oriented, and almost four out of five thought the models enjoyed a lifestyle like that reflected in the advertising and might participate in some of the events described in the advertising. Id. at 13. Additionally, 75% of respondents thought it was “extremely likely” the models were used “to make them think they represented the kind of women they would expect to see at the club, ” while another 20% thought it was “somewhat likely.” Id. Plaintiffs also submitted the Expert Report of Stephen Chamberlin to support their claim for damages. Chamberlin Report, ECF No. 38-15.


         Summary judgment is proper if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A dispute is “genuine” if the record is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Material” facts are those that might affect the outcome of the case under the governing substantive law. Id. Courts must review the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).


         Plaintiffs move for summary judgment on all seven counts in their Complaint, as well as on damages. Counts I and II allege Lanham Act violations. Counts III and IV allege statutory and common law misappropriation of likeness claims. Count V and VI are claims for civil theft and conversion. Count VII is a claim for unjust enrichment.

         A. Lanham Act Claims

         Plaintiffs bring their Lanham Act claims under Section 1125(a), which provides:

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which--
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

15 U.S.C. § 1125(a). “Section 1125(a) thus creates two distinct bases of liability: false association, § 1125(a)(1)(A), and false advertising, § 1125(a)(1)(B).” Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1384 (2014)

         i. False Advertising

         To succeed on their Lanham Act false advertising claim, Plaintiffs must ultimately prove “an injury to a commercial interest in sales or business reputation proximately caused by the defendant's misrepresentations.” Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1395 (2014). The Eleventh Circuit has outlined five elements which a Plaintiff must show to prove a false advertising claim: “(1) the advertisements of the opposing party were false or misleading; (2) the advertisements deceived, or had the capacity to deceive, consumers; (3) the deception had a material effect on purchasing decisions; (4) the misrepresented product or service affects interstate commerce; and (5) [Plaintiffs have] been-or [are] likely to be-injured as a result of the false advertising.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004).

         To show the advertisements at issue here were false or misleading, Plaintiffs can show they were either “literally false as a factual matter” or, if literally true or ambiguous, the advertisements “implicitly convey a false impression, are misleading in context, or [are] likely to deceive consumers.” Id. (quoting United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1180 (8th Cir. 1998)). “When determining whether an advertisement is literally false or misleading, courts ‘must analyze the message conveyed in full context, ' and ‘must view the face of the statement in its entirety.'” Osmose, Inc. v. Viance, LLC, 612 F.3d 1298, 1308 (11th Cir. 2010) (quoting Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 2147 (11th Cir. 2002)). “Statements that have an unambiguous meaning, either facially or considered in context, may be classified as literally false.” Id. (citing United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1180 (8th Cir.1998)). “As the meaning of a statement becomes less clear, however, and it becomes susceptible to multiple meanings, the statement is more likely to be merely misleading.” Id. (citing Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 158 (2d Cir. 2007)).

         Plaintiffs contend the advertisements at issue are literally false. In Plaintiffs' Complaint, they allege the images were “altered to intentionally give the impression that [each Plaintiff was] either a stripper working at the strip clubs or that she endorses the strip clubs.” Compl., ¶¶ 57, 69, 81, 93, 105, 117, 129, 141, 154, 165, 177, 189, 201. However, in the instant Motion, they simply say that the advertisements “necessarily conveyed or implied each Plaintiff's association with[, ] endorsement of, and support for the Clubs.” Motion, ¶ 28. Given that Plaintiffs have not shown that the images themselves were altered, it is clear that the images in the advertisements are actual images of Plaintiffs. They therefore are not literally false, even if used on Defendants' Facebook pages. See Unique Sports Products, Inc. v. Wilson Sporting Goods Co., 512 F.Supp.1318 (N.D.Ga. 2007) (“Sampras's picture alone is not ‘literally false.'”). Two other courts presented with virtually identical lawsuits (and some of the same Plaintiffs) have similarly found that an unauthorized use of a photograph is not a literally false statement, even if the image was altered. Edmonson, et al. v. Velvet Lifestyles, LLC., et al., No. 15-CV-24442, ECF No. 174, 14 (S.D. Fla. July 28, 2017) (“[T]he Court has found no authority (and Plaintiffs have cited none) holding that the unauthorized use of a photograph to advertise a product or business constitutes ...

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