494 F.Supp.3d 618
D. Ariz.2020Background:
- Three professional models (Pinder, Cheri, Voronina) sued Hi Liter (4716 Inc.) alleging Facebook advertisements used their photos without consent, asserting Arizona false light and right-of-publicity claims and Lanham Act claims for false advertising and false association.
- The parties filed cross-motions for summary judgment; the court conducted a detailed evidentiary and legal review including admissibility/authentication of Facebook screenshots.
- Court held screenshots could be admissible at trial (business‑records/self‑authenticating, internet archive, or circumstantial authentication) and thus could be considered for summary‑judgment purposes. Whether Hi Liter posted the ads remained a genuine factual dispute.
- Court ruled Voronina’s false‑light claims were time‑barred because false‑light accrues at publication; other false‑light claims (Pinder, Cheri) survived summary judgment because issues of falsity by implication, offensiveness, and malice were disputed.
- Arizona recognizes a right of publicity (common‑law/Restatement approach as adopted by the Arizona Ct. App.); right‑of‑publicity claims survived summary judgment on disputed elements (use, lack of consent, commercial advantage, injury, identifiability, agency questions).
- Lanham Act: court dismissed Plaintiffs’ false‑advertising claim (failed to show Lanham Act zone of interests and proximate cause) but denied summary judgment on false‑association/false‑endorsement (likelihood of confusion disputed; survey and Sleekcraft factors created triable issues). John Doe defendants were dismissed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authentication/admissibility of Facebook screenshots | Plaintiffs can lay foundation; screenshots and circumstantial evidence suffice | Ads are inadmissible because Plaintiffs never saw posts and lack first‑hand authentication | Court: screenshots may be admissible via records, archive, or circumstantial evidence; factual foundation can likely be laid—considered for SJ purposes |
| False‑light statute of limitations | Continuing‑wrong applies; clock starts when posts removed | Accrual at publication date | Court: accrual at publication; continuing‑wrong not applicable; Voronina’s claims time‑barred; others within one year survive |
| False‑light falsity/implication and offensiveness | Ads implied endorsement/employment by Hi Liter — false implication | Photos were true and unaltered; no false statements or major misrepresentation | Court: triable issues exist whether text+images created false implication and were highly offensive; denied SJ on these elements |
| Actual malice (public‑figure standard) | Hi Liter knew plaintiffs weren’t affiliated yet posted ads; failure to investigate supports reckless disregard | Agency (outsourced creator told to use only licensed images) negates actual malice | Court: actual malice is a factual issue (credibility/intent); unresolved at summary judgment |
| Right of publicity recognition and scope | Arizona recognizes a right of publicity and Plaintiffs may proceed | Statute for soldiers shows legislature limited right to soldiers; common‑law right is preempted | Court: Arizona recognizes right of publicity (In re Reynolds/Restatement); soldiers’ statute supplements rather than preempts; claims survive SJ on disputed elements |
| Lanham Act – false advertising (§1125(a)(1)(B)) | Lost modeling income and marketability from unauthorized use qualifies as commercial injury | Plaintiffs lack Lanham zone‑of‑interests and cannot show plaintiff’s injury was proximately caused by consumer deception | Court: Plaintiffs failed to show zone of interests or proximate causation; false‑advertising claim dismissed |
| Lanham Act – false association/endorsement (§1125(a)(1)(A)) | Plaintiffs’ survey and identical photos show likelihood of consumer confusion | No direct competition; insufficient evidence of reputational/competitive injury | Court: likelihood of confusion is factual; Sleekcraft factors (similarity, relatedness, internet troika, survey evidence) create triable issues; denied SJ |
| John Doe defendants | Plaintiffs listed unnamed defendants for possible actors | Defendants lacked identity and allegations | Court: John Doe Defendants 1–20 dismissed for lack of identity/allegations |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary‑judgment standard)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (materiality and genuine issue standard)
- Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (U.S. 2014) (Lanham Act zone‑of‑interests and proximate cause analysis)
- AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979) (likelihood‑of‑confusion factors)
- In re Estate of Reynolds v. Reynolds, 327 P.3d 213 (Ariz. Ct. App. 2014) (Arizona recognizes right of publicity)
- Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781 (Ariz. 1989) (false‑light by implication; major‑misrepresentation requirement)
- Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025 (9th Cir. 2010) (district courts should sparingly grant SJ on likelihood of confusion)
- Wendt v. Host Int’l, Inc., 125 F.3d 806 (9th Cir. 1997) (intentional adoption of a mark supports presumption of deception)