424 F.Supp.3d 276
D. Conn.2019Background
- Fourteen professional models (Plaintiffs) sued two strip-club operators (Mynx Groton and Mynx Hartford) and an individual owner, alleging unauthorized use and alteration of their photographs on the clubs’ social media to imply the models worked for or endorsed the clubs.
- Plaintiffs allege the altered images harmed their commercial reputations, future earning capacity, and deprived them of licensing fees; photos were posted on Twitter, Facebook, and Instagram.
- Plaintiffs asserted claims under the Lanham Act (false advertising), Connecticut common-law false-light invasion of privacy, CUTPA, defamation, negligence, conversion, and quantum meruit.
- Defendants moved to dismiss several claims for failure to state a claim, arguing lack of standing, lack of publicity, insufficient damages or causation, and that some torts (conversion, quantum meruit) were inapplicable to intangible image rights.
- The Court conducted a Rule 12(b)(6) review and denied dismissal for Lanham Act false advertising, false light, CUTPA, defamation, and negligence; it granted dismissal of conversion and quantum meruit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lanham Act (false advertising) | Defendants’ social-media use falsely associated models with clubs, injuring their commercial reputation and future sales | Plaintiffs lack Lanham Act statutory standing and failed to plead proximate causation or actual commercial injury | Denied dismissal — plaintiffs plausibly alleged falsity, materiality, interstate publication, and injury within the Act’s zone of interests (Lexmark governs standing) |
| False-light invasion of privacy | Posting altered images on public social media placed plaintiffs in a false, offensive light to the public | Publication on social media is not necessarily "publicity" reaching the general public | Denied dismissal — public social-media postings plausibly constitute publicity and the complaint alleges falsity and offensiveness |
| CUTPA | Unauthorized use of images for commercial promotion is an unfair/deceptive trade practice causing ascertainable loss (lost licensing and reputational harm) | Plaintiffs fail to plead ascertainable loss or proximate causation with sufficient particularity | Denied dismissal — plaintiffs alleged ascertainable, discoverable losses and proximate injury from advertising practices |
| Defamation | Images implying plaintiffs are strippers or endorsers are false and defamatory, harming business reputations | Images are not defamatory on their face; plaintiffs failed to allege actual/special damages for defamation per quod | Denied dismissal — images may be defamatory; truth and damages questions are factual (libel by implication possible) |
| Negligence | Defendants owed a duty to adopt procedures to avoid misusing models’ publicity/intellectual property, breach caused foreseeable economic harm | No recognized duty under Connecticut law; claims are repackaged torts and allege only economic loss without physical injury | Denied dismissal (for now) — duty and foreseeability are fact-based; public-policy factors may support recognizing a duty; resolution deferred to discovery |
| Conversion | Plaintiffs assert ownership of image/likeness and claim unauthorized exercise of ownership | Connecticut traditionally does not recognize conversion for purely intangible rights; plaintiffs do not allege current deprivation of ownership or exclusive control | Granted dismissal — plaintiffs failed to plead the required proprietary interest and exclusion of ownership consistent with conversion law |
| Quantum meruit | Plaintiffs seek restitution for value of their images | No services were rendered to defendants and no implied agreement or expectation of payment exists | Granted dismissal — no factual basis for implied-contract/unjust-enrichment recovery |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (governs plausibility standard on Rule 12(b)(6))
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading requires more than labels and conclusions)
- Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) (Lanham Act standing requires injury in the statute’s zone of interests and proximate cause)
- Time Warner Cable v. DIRECTV, 497 F.3d 144 (2d Cir. 2007) (when images/words can be literally or impliedly false)
- Church & Dwight Co. v. SPD Swiss Precision Diagnostics GmBH, 843 F.3d 48 (2d Cir. 2016) (falsity and implied message doctrine in advertising cases)
- Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51 (2d Cir. 2016) (two-component false-advertising analysis: falsity and materiality)
- Merck Eprova AG v. Gnosis S.p.A., 760 F.3d 247 (2d Cir. 2014) (materiality as relating to an inherent quality affecting purchasing decisions)
- Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 736 F.3d 198 (2d Cir. 2013) (publication/in-commerce analysis for brand-related claims)
- Gleason v. Smolinski, 319 Conn. 394 (Conn. 2015) (elements of defamation under Connecticut law)
- Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, 284 Conn. 408 (Conn. 2007) (conversion requires a sufficient property interest and exclusive deprivation)
- Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20 (Conn. 2000) (intangible property rights generally not subject to conversion absent documentary evidence)
- Demond v. Project Service, LLC, 331 Conn. 816 (Conn. 2019) (existence of duty is question of law; negligence requires foreseeability and public-policy analysis)
- Monk v. Temple George Associates, LLC, 273 Conn. 108 (Conn. 2008) (two-part legal-duty test and public-policy factors)
- Bloomfield Health Care Ctr. of Connecticut, LLC v. Doyon, 185 Conn. App. 340 (Conn. App. Ct. 2018) (application of foreseeability and public-policy in duty analysis)