Models Obtain Default Judgment Against Club for Use of Their Photographs

Jessica Hinton, et al., Plaintiffs, vs. Completely Innocent LLC, Defendant

United States District Court for the District of Arizona No. CV-21-01019-PHX-SPL

Opinion issued January 7, 2022

Arizona Right of Publicity, Lanham Act false endorsement

After the defendant Completely Innocent LLC dba Club Luxx failed to file an answer, the four professional model plaintiffs filed a motion in the District of Arizona on June 11, 2021 for default judgment for damages and permanent injunctive relief. The plaintiffs argued that Completely Innocent had used their images to promote the Club on the Club’s social media pages without permission and that such use constituted misappropriation and unauthorized publication of their images in violation of § 43 of the Lanham Act, 15 U.S.C. § 1125  et seq. and the Arizona common law right of publicity.  Completely Innocent did not respond to the motion.

In evaluating the  claim’s merits, the Court found that the plaintiffs sufficiently stated claims for relief against the defendant for violations of the Lanham Act and Arizona’s common-law right of publicity.  With respect to the Lanham Act claim for false association, the plaintiffs had asserted that Completely Innocent had used images of the plaintiffs on the Club’s social media without permission or compensation and that such use was likely to cause confusion or deceive viewers into believing that the plaintiffs worked at, promoted, endorsed, or were otherwise affiliated with the Club or the events being advertised.  None of the models had ever been employed at or affiliated with the Club at any time and had never consented to the use of their images. The plaintiffs further asserted that they were injured by being denied the fair market value of the Club’s use of their images in promotional, marketing, and advertising media on its websites and social media.  The Court also found that the plaintiffs had stated a claim under the Arizona common law right of privacy, noting that, in Arizona, a right of publicity claim requires the plaintiff to show the defendant’s use of the plaintiff’s name or likeness, the appropriation of the plaintiff’s name or likeness to the defendant’s advantage, lack of consent from the plaintiff, and resulting injury.

With respect to the dollar amount requested for actual damages, the Court did not find the requested $85,000 “to be so substantial or unreasonable so as to discourage default judgment.” It found the amount reasonable and appropriate, noting that the amount was for all four plaintiffs, the use of the images occurred over a nearly three-year period and included at least ten different images, and the damage amount was supported by a declaration submitted by a model and talent agent that included details as to his methodology for determining the fair market value of the use of each image.

The Court did not award costs and fees as they were not detailed by the plaintiffs but ordered the plaintiffs to submit a motion for them with verifying detail and records.  The Court denied the plaintiffs’ request for a permanent injunction because plaintiffs did not submit arguments demonstrating that the harm suffered was irreparable, that monetary damages were inadequate, that the balance of hardships were in the plaintiffs’ favor, or that the public interest would not be disserved by a permanent injunction.

In sum, the Court granted the plaintiffs’ motion to enter default judgment on the Lanham Act and Arizona common law right of privacy claims, awarded plaintiffs the $85,000 in actual damages, denied the plaintiffs’ request for attorneys’ fees and costs without prejudice, and denied the plaintiffs’ request for a permanent injunction.

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