460 F.Supp.3d 1065
D. Nev.2020Background
- Five professional models (Sears, Colon, Bernstein, Pinder, Davalos) allege Crazy Horse III (owned by defendants Russell Road and SN Investment) posted their photographs on Crazy Horse’s social media without permission and used them in advertising.
- Plaintiffs sued for Lanham Act false advertising and false endorsement, Nevada right of publicity, and negligence/respondeat superior; suit filed June 24, 2019.
- Complaint identifies upload dates for each plaintiff’s image (e.g., Pinder: Mar. 20, 2015; Davalos: Nov. 2, 2015; Bernstein: Nov. 29–30, 2016; Colon: July 9, 2016; Sears: July 5, 2017).
- Russell Road moved to dismiss arguing (1) some claims are time-barred based on upload dates, (2) negligence claims fail for lack of duty and are barred by the economic loss doctrine.
- Plaintiffs argued the continuing tort doctrine tolls limitations, and asserted negligence based on unauthorized use and lack of policies; they also invoked reputational harm to avoid economic-loss preclusion.
- Court: granted in part — dismissed Pinder’s Lanham Act and right-of-publicity claims as untimely; dismissed all negligence claims (Nevada’s right-of-publicity statute is the exclusive remedy); denied dismissal in other respects for the remaining plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable limitations for Lanham Act false advertising/endorsement | Plaintiffs: most analogous statute is Nevada Deceptive Trade Practices Act (NDTPA) four-year period | Russell Road: most analogous is fraud (three-year period) | Court: NDTPA is most analogous; four-year period applies; claims timely for all except Pinder |
| Timeliness of Nevada right of publicity claims | Plaintiffs: four-year NDTPA or four-year catchall applies; continuing tort tolls limitations | Russell Road: claim analogous to defamation (two-year period) | Court: right of publicity analogous to NDTPA (or catchall if ambiguous); four-year period applies; Pinder’s claim untimely |
| Continuing tort vs. single-publication rule for online postings | Pinder: ongoing online presence and alleged republication toll limitations | Russell Road: single publication rule applies; initial upload fixed accrual date | Court: applied single-publication rule to Internet posts; continuing-tort doctrine inapplicable; Pinder’s claims dismissed as time-barred |
| Negligence duty / exclusivity of statutory remedy | Plaintiffs: defendant owed duty not to use images without authorization and to maintain preventative policies; respondeat superior for employees | Russell Road: plaintiffs allege no special relationship or independent common-law duty; economic loss doctrine bars claims | Court: Nevada’s right-of-publicity statute is the exclusive remedy; court predicts no independent common-law duty and dismisses negligence claims |
Key Cases Cited
- Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658 (9th Cir. 1998) (motion-to-dismiss pleadings standard; well-pleaded allegations accepted as true)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard)
- Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829 (9th Cir. 2002) (laches is a defense to Lanham Act claims; limitations/laches relationship)
- Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122 (9th Cir. 2006) (single-publication rule and its application to Internet publications)
- Flowers v. Carville, 310 F.3d 1118 (9th Cir. 2002) (continuing-tort doctrine; limitations tolling when wrongful conduct is ongoing)
- Del Webb Communities, Inc. v. Partington, 652 F.3d 1145 (9th Cir. 2011) (NDTPA/consumer-fraud victim definition; role of plaintiff in transaction irrelevant if directly harmed)
- Hetter v. Eighth Judicial Dist. Court, 874 P.2d 762 (Nev. 1994) (Nevada’s right-of-publicity statute provides a complete and exclusive remedy)
- United States ex rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 720 F.3d 1174 (9th Cir. 2013) (statute-of-limitations dismissal on Rule 12(b)(6) only when limitations clearly appear on face of complaint)