Tal Berkovich Playboy
Gibson et al v. SCE Group, Inc. Et alFiling123OPINION AND ORDER re: 99 MOTION for Summary Judgment. Filed by Sara Underwood, Carissa Rosario, Joanna Krupa, Jessica Burciaga, Tiffany Selby, Ursula Mayes, Anya Monzikova, Jessica Rockwell, Eva Pepas, Cora Skinner, Alicia W hitten, Paola Canas, Ashley Vickers, Sheena Lee Weber, Jamillette Giaxiola, Tal Berkovich, Brooke Taylor, Jessa Hinton, Irina Voronina, Vida Guerra, Cielo Jean Gibson, Brittany Wilcox, 95 MOTION for Summary Judgment. Filed by 21 Group, Inc., SCE Group, Inc., Lambros Moumouris. For the foregoing reasons, Defendants' motion for summary judgment is GRANTED for all claims except for Burciaga's claim for compensatory damages for the unauthorized use of one pictu re under Civil Rights Laws §§ 50-51.
Plaintiffs' motion for summary judgment is DENIED for all claims except for Burciaga's claim for compensatory damages for the unauthorized use of one picture under Civil Rights Laws §§; 50-51. Plaintiffs are directed to submit proposed damages for Burciaga's claim and a memorandum of law in support of that proposal by July 31, 2019. Defendants are directed to respond by August 7, 2019.
The Clerk of Court is directed to close the motions, Docs. (Signed by Judge Edgardo Ramos on 7/17/2019) (kv). UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORKCIELO JEAN GIBSON, JESSICA BURCIAGA,PAOLA CANAS, JOANNA KRUPA, SARAUNDERWOOD, BRITTANY WILCOX, JESSICAROCKWELL, TAL BERKOVICH, TIFFANYSELBY, VIDA GUERRA, ALICIA WHITTEN,ANYA MONZIKOV A, ASHLEY VICKERS,CARISSA ROSARIO, CORA SKINNER, EV APEPAJ, IRINA VORONINA, JAMILLETTEGIAXIOLA, URSULA MAYES, JESSA HINTON,SHEENA LEE WEBER,USDC SONYDOCUMENTELECTRONICALL y FILED:DOC#.0.TE FILEp;;,t l. 0 Jq 'tIOPINION & ORDER15 Civ. 08168 (ER)Plaintiffs,- againstSCE GROUP, INC., d/b/a Sin City Cabaret; 21GROUP, INC., d/b/aShow Palace Gentlemen's,Defendants.RAMOS, D.J.:Plaintiffs, twenty models and a model's sister, bring this action against two clubs, whichfeature partially nude dancers, because those clubs used Plaintiffs' pictures without their consentin advertisements for the clubs. The parties have cross moved for summary judgment. For thereasons set forth below, Defendants' and Plaintiffs' motions for summary judgment areGRANTED in part and DENIED in part.I.Background 1Defendant SCE Group, Inc.
('SCE') owns and operates a club known as Sin CityCabaret, which is located at 2520 Park Avenue, Bronx, New York. Defendant 21Group, Inc.
('21 Group') owns and operates a club known as Show Palace Gentlemen's Club,which is located at 45-20 21st Street, Long Island City, New York. Both clubs alsooperate related social media accounts. Constantine Drakopoulos, the generalmanager of SCE Group, oversaw all marketing and social media for Show Palace and Sin Cityand served as their Rule 30(b)(6) witness. 105-5, 19, 31, 118.SCE and 21 Group concede that the pictures of the Plaintiffs at issue herein appeared ontheir respective Instagram and Facebook accounts. Drakopoulos testified that atdifferent times either Mike Diaz, a manager of 21 Group, or Creative Complex, an advertisingagency retained by Defendants, posted the images. 111, 66.Drakopoulos testified that Diaz found the images that he personally posted on Googleand believed that the images could be used in the clubs' social media accounts because it was hisunderstanding that any image on the internet could be used for commercial purposes. At 67.Drakopoulos testified that Diaz would only post an image if 'there was no warning orrestrictions or anything that says not to use the image.'
Tal Berkovich Playboy Mansion
Drakopoulos further1The Court notes at the outset that over the past few years, Plaintiffs' counsel has filed nearly identical lawsuitsagainst numerous other so-called gentlemen's clubs in this District. See Edmondson v.
Holdings, Inc.,No. 2242 (VEC), 2018 WL 4112816, at.l (S.D.N.Y.
29, 2018) (listing cases). Indeed, Plaintiffs'counsel has brought seven similar cases on behalf of some of the plaintiffs involved in the instant case. See Toth v.59 Murray Enterprises, Inc., No. 8028 (NRB), 2019 WL 95564, at.l (S.D.N.Y.
3, 2019); Edmondsonv. Holdings, Inc., No. 2242 (VEC), 2018 WL 4112816, at.l (S.D.N.Y. 29, 2018);Voronina v. Scores Holding Co., Inc., No. 2477 (LAK), 2017 WL 74731, at.l (S.D.N.Y. 5, 2017);Mayes v.
490 Habitat, Inc., No. 1427 (SJF) (GRB), 2019 WL 1429602, at.1 (E.D.N.Y. 29, 2019);Mayes v. Summit Entm 't Co,p., 287 F. 3d 200,202 (E.D.N.Y.
2018); Taylor v. Trapeze Mgmt., LLC, No.
62262 (KMM), 2019 WL 1466470, at.2 (S.D. 8, 2019); Gibson v. White's Place, LLC, No. 3:16 Civ.392-J-32JBT, 2017 WL 4169690, at. 1 (M.D. In these seven lawsuits, as in the instant lawsuit,the plaintiffs claimed that various clubs used their images on social media in violation of the Lanham Act, stateprivacy rights, and state prohibitions on unfair trade practices.2stated that Defendants searched for the pictures by theme, such as 'sexy girl in a military outfit,'and not by the names of any of the models.With respect to the images posted by Creative Complex, Drakopoulos testified thatCreative Complex told him that it purchased the pictures to create the posts. 105-5, 130131.
He later stated more broadly that Creative Complex 'always purchase d their images' andthat it 'bought them through Shutterstock.' At 135-137, 261-262.Drakopoulos also testified that neither of the clubs had a contract with any of thePlaintiffs, that he never saw or sought contracts between any third-party graphic designers andPlaintiffs, that he did not know the names of any of the Plaintiffs when the pictures werepublished, and that, prior to being served with the complaint, he had not heard of any of theplaintiffs in this suit. 105-5, 37-38, 56-57, and 191. Moreover, Drakopoulos testified thatthere did not seem to be a relationship between the alleged fame or notoriety of the models andthe effectiveness of the advertisements because the profits generally remained the same for eachevent, regardless of the identity of the model used in the social media posts relating to thoseevents.
108, 35.A.The Use of Plaintiffs' ImagesThe images posted on Defendants' Facebook and Instagram accounts featured Cielo JeanGibson, Paola Canas, Jessica Burciaga, Ursula Mayes, Jessica Hinton, Joanna Krupa, BrittanyWilcox, Jessica Rockwell, Sara Underwood, Anya Monzikova, Sheena 'Lee' Weber, TalBerkovich, Vida Guerra, Eva Pepaj, Tiffany Selby, Irina Voronina, Jamillette Gaxiola, Ashley3Vickers, Carissa Rosario, Cora Skinner, and Alicia Whitten. 2 According to Drakopoulos,Defendants selected these pictures to imply that their performers are attractive. 111, 68.1.GibsonGibson has served as a model for the Falken Drift Team, Short Block Technologies, andTop Rank Boxing.
To the best of her recollection, she had approximately 50,000Instagram followers in 2015. She testified that she did not have as manyfollowers in 2013 as she did in 2015 but she did not know the specific number. 105-14,68-69.The picture Defendants posted of Gibson is from a 2002 or 2003 photography shoot.Doc.
For that shoot, Gibson gave the photographer limited permission to use her image.Doc. According to timestamps on Instagram, the picture of Gibson was first posted in theweek of July 16, 2013. 32.CanasCafias has served as the face for Curve Lingerie, Masters Gold Tournament in Dubai, andthe International Surf and Sport Expo in Orlando, Florida. Additionally, she hasappeared on numerous television shows and worked for SOHO, KISS Underwear, SalonInternational, Zona Rosa, and Esteban Escobar.
To the best of her recollection,approximately 100,000 people followed her Instagram account in 2015. Id.The two pictures of Cafias come from a 2011 or 2012 shoot for Espiral Catalog. Cafias testified that she signed an agreement with Espiral Catalog and that the contract2On January 24, 2019, Brooke Taylor filed a stipulation of voluntary dismissal for her claim against all Defendants.Doc.
93.3The Court provides the day the pictures were posted if provided, otherwise the week.4only allowed the images to be used for the brand. According to time stampson the pictures, the most recent picture was posted during the week of September 21, 2014. Doc.1-1, 6-15.
These images were posted by Creative Complex. 108, 32.3.BurciagaBurciaga has appeared in Playboy, Maxim, Import Tuner, Modified Mag, PerformanceAuto & Sound, Show Latina, and Lowrider magazines.
To the best of herrecollection, she had 35,000 Facebook followers, 1,200,000 Instagram followers, and 150,000Twitter followers in 2015. Id.One picture of Burciaga is from a 2006 shoot for Stuff magazine. 4Burciaga testified that she signed a release with Stuff magazine and that she could not recall thedetails of the release. 105-16, 65-66. According to timestamps on the social media posts,the pictures were posted on January 25, 2013, November 15, 2013, January 19, 2014, and oncertain dates 87 weeks, 49 weeks, and 15 weeks before August 4, 2015. 1-1, 17-27.Creative Complex posted all of these images except for the one posted 15 weeks before August4, 2015.
108, 32.4.MayesMayes has appeared in Deal or No Deal, Minute to Win It, The Tonight Show, The JayLeno Show, and Vogue, Elle, In Style, Cosmopolitan, and Marie Claire magazines. She worksfor CESD Talent Agency, Brand Model & Talent Agency, and Abstract Talent Agency. In her declaration, she testified that she had approximately 10,000 Facebook followers4Burciaga could not recall the origin of the other pictures but thought that they may 'possibly' be fromhiphoplead.com. 102-4, 11-12.5and 5,000 Instagram followers in 2015.
She did not know how many followers she had in2013. 105-16, 93-94.All of the pictures of Mayes, except for one that she took herself, were shot forDreamgirl Magazine between 2005 and 2007. 105-16, 23-24. Defendants have providedcontracts between Mayes and Dreamgirl Magazine because Plaintiffs produced them indiscovery for other cases. 105-51, 9-20. 5 Each contains a release but with slightlydifferent language.
The 2007 release gave 'permission for Dreamgirl to produce, copyright,and/or publish my photograph or images.' 6 The posts of Mayes occurred on March13, 2013, July 1, 2013, December 29, 2013, and 107 weeks, 45 weeks, 25 weeks before August4, 2015. All of these images, except for those posted on December 29, 2013, andMarch 13, 2013, were posted by Creative Complex. 108, 32.5.HintonHinton has modeled for Playboy, FHM, Kandy, MMA Sports, Guitar World, and Muscle& Fitness magazines, Milwaukee's Best Beer, Affliction Clothing, Enzo, Milano Hair Products,REVIV Wellness Spa, Protein World, Rhonda Shear Shapewear, Leg Avenue, and RomaCostume.
She has appeared on Victory Poker and Top Rank Boxing. To thebest of her recollection, she had 1,500,000 social media followers in 2015. Shedid not know how many followers she had in 2014. 105-18, 95-96.
The three pictures ofHinton are from an Elegant Moments photography shoot in 2013 or 2014, a Playboyphotography shoot in 2011, and an Affliction photography shoot in 2011 or 2012. 111,5Mayes did not recall if she signed a release with Dreamgirl Magazine and she testified that neither she nor heragents have a copy of her contracts. 105-16, 27-29.6Defendants have also provided a 2008 release between Dreamgirl and Mayes, a year after the pictures were taken.621. 7 Two of Hinton's pictures were posted on April 4, 2014, and February 21, 2014.
The last picture lacks a timestamp.6.KrupaKrupa has appeared in Max Havoc: Curse of the Dragon, Superstars, Dancing with theStars, Poland's Top Model, The Real Housewives of Miami, and Playboy, Personal, Steppin'Out, Envy, Shape, FHM, Stuff, Inside Sport, Teeze, and Maxim magazines. 111, 21-22.She was also named the 'Sexiest Swimsuit Model in the World,' Germany's Maxim 'Model ofthe Year,' and number 55 on Maxim's 'Hot 100' list. She declared that, in2015, she had approximately 800,000 Facebook followers, 800,000 Instagram followers, and800,000 Twitter followers. She did not know how many followers she had in 2013 or 2014.105-19, 177-178.According to Krupa's declaration, her pictures come from a Spec photography shoot inapproximately 2013 and from a Femme Fatales Magazine shoot in approximately 2006. Doc.102-4, 4-5. In her deposition, however, she testified that one image could have come from aPoker Magazine photography shoot from 2007. She testified that 'either myself oran agent or manager at the time probably' signed a release or other documents related to thisshoot.
She did 'not know the exact terms of the agreement,' but assumed that 'theonly rights they would have is for the specific project or magazine that I did the photo shoot for.' Krupa's pictures were posted on April 30, 2014 and June 30, 2013. 1-2, 1516.7Hinton testified that Richard Masuda took the first picture of her and that they did not enter into a written or oralcontract to limit either party's control of the image.
105-18, 51-59.77.Rockwell and WilcoxRockwell has appeared in Angry Video Game Nerd: The Movie, Immigrants, A Que NoPuedes!, Sons ofAnarchy, Entourage, Knight Rider, Heroes, Hooter's Magazine, Hooter'sCalendar, Extreme RC Car Magazine, No Fear Calendar, Shift Calendar, and in catalogues forDreamgirls Lingerie. She remembers having approximately 2,000 Instagramfollowers in 2015.
She did not recall how many followers she had in 2013. Wilcox, Rockwell's sister, is not a model. 111, 61.The picture of Wilcox and Rockwell is from a promotional event for Sports by Brooks.Ex. Rockwell recalled signing a release for the business's purposes but she did nothave a copy of the release. The picture was published on November 1, 2013.
Doc.1-2, 21.8.UnderwoodUnderwood has appeared in Playboy, The House Bunny, Miss March, Kendra, The GirlsNext Door, Attack of the Show, and Bridget's Sexiest Beaches. According to herdeclaration, she remembered having approximately 8,000,000 social media followers in 2015.Id. She did not know how many social media followers she had in 2013 or 2014. 105-22, 88.Two of the pictures of Underwood were used.
One was either taken by her or by a friend.105-22, 50. Underwood could not recall when she took the other picture of herself. The pictures were published on August 23, 2013, and April 25, 2014.
1-3, 2-3.9.MonzikovaMonzikova, once named one of the 100 Most Beautiful People in the World by PeopleMagazine, has appeared in Deal or No Deal, Maxim, Cosmopolitan, Vogue, Runway, Melissa &Joey, Aspen, Bones, Body of Proof, CS!, Knight Rider, In Plain Sight, Zombie Apocalypse, Too8Little Too Late, Somebody Marry Me, Seeking Dolly Parton, Surrogates and a nationaladvertising campaign for Gilt.com. She recalls having approximately 10,000social medial followers in 2015. She did not recall how many followers she had in 2013.Doc. 105-23, 102-103.The picture of Monzikova comes from a photography shoot for Dreamgirl' s Halloweencostume catalog sometime around 2010. 105-23, 37-39. Monzikova testified that shesigned a contract for the shoot and that the acceptable uses for the images were Dreamgirl, itscatalog and website.
She also testified that she had not seen it recently and that shecould not testify about the contract's terms. The picture was published on May18, 2013. 1-3, 5.10.WeberWeber has appeared in Playboy, Maxim, People, and Street Customs Magazine, TheReality ofSpeed, Harold and Kumar 2, and The Pool Boys. She has served as a SSISpokesmodel and is currently the Director of Business Development at Harmony Medcare. She remembers that, in 2015, she had approximately 5,000 Facebook followers and3,000 Instagram followers. She did not recall how many social media followersshe had in 2014.
105-24, 219.The picture of Weber was originally created for her website in approximately 2005. In her declaration, she states that the photographer had limited permission to use theimage and that he or she did not have authority to use the images for any purposes but thoseagreed-upon. The picture was posted on May 9, 2014. 1-3, 7.911.BerkovichBerkovich has appeared in advertisement campaigns for Vine Versa Cosmetics, AstonMartin, Old Spice, and Bose. She remembers having approximately 3,000Facebook followers and 8,000 Instagram followers in 2015. Berkovich did not know howmany followers she had in 2013.
105-25, 96-97.Berkovich's picture was originally shot for T3 Magazine around 2007. 111, 35.She testified that she did not remember seeing a contract or an agreement related to the shoot.Doc. The picture was posted on January 20, 2013. 1-3, 9.12.GuerraGuerra, at one point FHM s 'Model of the Year' and number 26 on FHM s 'Top 100Sexiest Females.'
She has appeared in DUB, Smooth, Escape, Open Your Eyes,El Gordo y La Flaca, The Chappelle Show, National Lampoons Dorm Daze 2, Vida Guerra:Exposed, Scarface: The World is Yours, and music videos for Kanye West and Nelly. She remembers that in 2015 she had approximately 1,600,000 Facebook followers, 250,000Instagram followers, and 250,000 Twitter followers. Id.The pictures of Guerra come from a 2003 or 2004 photography shoot for FHM and froma 2003 or 2004 photography shoot for Black Men 's Magazine. For the firstpicture, Guerra testified that she did not have any written or oral contracts with FHM Doc. 10526, 51-53. She also testified that she did not recall signing any documents with Black Men'sMagazine but that she 'probably' did not sign a release.
She further testified that therewas a verbal agreement for the image 'iust to be in the magazine.' The first picturewas posted on May 2, 2013. It is unclear from the exhibit attached to thecomplaint when the second picture was posted. 1-3, 12.1013.PepajPepaj has appeared in The Hand Off, Interior, Leather Bar, The Romp, True Detective,and in commercial campaigns for Diet Coke.
She remembers havingapproximately 25,000 Instagram followers in 2015. She testified that she did not maintain aFacebook or Instagram account in 2013. 105-27, 144.The picture of Pepaj comes from a 2013 photography shoot with Leg Avenue. Pepaj produced contracts between her and Leg Avenue for 2009 and 2007. In thosecontracts, Pepaj 'irrevocably assigned to Leg A venue. The unrestricted rights to copyright,use, publish, sell, or distribute images of me which it has had taken this day.'
Syarat kemasukan program asasi sains ums. 112-1, 7.There is no evidence that these contracts from 2007 and 2009 covered Pepaj's 2013 shoot. Thepicture was posted on April 4, 2013. 1-3, 14.14.SelbySelby, a Playboy Playmate of the Month in 2007 and a two-time Miss Hawaiian Tropic,has appeared in The Girls Next Door, Bikini Destinations, Poor Man's Bikini Beach, Last ComicStanding, and Deal or No Deal. She has appeared in advertising campaigns forGuitar Hero 5, A Lounge, Reflections Boutique, Budweiser, Suzuki, Bang Vodka, Skoal, Stacker2, Hawaiian Tropic, and Guitar Center. To the best of her recollection, shehad approximately 3,000 Facebook followers and 10,000 Instagram followers in 2015. At 36.Selby's picture comes from a costume or a lingerie catalog from approximately 2005 or2006. Initially, Selby testified that she remembered signing a release or otherdocuments in connection with this shoot but that she neither retained the documents nor recalledtheir contents.
She later testified, 'I'm pretty sure the lingerie company owns the11rights to them but I'm not-I really don't know because I don't remember.' Thepicture of Selby was posted on November 17, 2012. 1-4, 2.15.VoroninaVoronina, who was Playboy's Miss January 2001 and Kandy Magazine's 2013 Model ofthe Year, has appeared in FHM, Maxim, Playboy, Max (Italy), Ocean, Shape, 944, Knockout, Q(UK), People (Australia), Kandy, Rukus, Vape, Reno 911!: The Movie, Svetlana, Saul of theMole Men, iCarly, Balls of Fury, Piranha 3DD, Laser Team, Killing Hasselhojf, Scramble and inadvertising campaigns for Skyy Vodka, Miller Lite, Michelob Ultra, Bacardi, Sisley & Detour,St.
Pauli Girl, and Constellation. She remembers that, in 2015, she hadapproximately 2,200,000 Facebook followers, 300,000 Instagram followers, and 75,000 Twitterfollowers. At 56-57.Voronina's picture comes from a photography shoot for Leg Avenue from sometimebetween 2008 and 2009. During discovery, Defendants introduced contractsbetween V oronina and Leg Avenue that had been produced by V oronina in other lawsuits.
Doc.105-29, 68-69. The release provided that Voronina 'irrevocably assigned to LegA venue. The unrestricted rights to copyright, use, publish, sell, or distribute images of mewhich it has had taken this day.' The pictures ofVoronina were posted onJanuary 8, 2014.
1-4, 4.16.GaxiolaGaxiola, a former Miss Cuba, has appeared in GQ, Maxim (Australia), Open, Esquire,and in advertising campaigns for Reebok, Hurley, Guess Jeans, Victoria Secret, Nike, MACCosmetics, Roberto Cavalli, Naeem Khan, Paul Marciano, Fendi, Saks Fifth Avenue, NiemanMarcus and the Ultimate Fighting Championship. She remembers having12approximately 125,000 Instagram followers in 2015, and does not recall how many social mediafollowers she had in 2014. 105-30, 137-138.Gaxiola's picture comes from a photography shoot with Leg Avenue in 2009 or 2010.Doc. Gaxiola testified that she signed a release but that she did not have a copy ofthe release. The picture of Gaxiola was posted on January 1, 2014.
1-4,6.17.VickersVickers has appeared in WEE: NXI', WWE: Smackdown, and A Fine Step. 111, 46.She has also appeared at events for NASCAR, NHRA, the International Auto Show, the NBA,the Future Business Leaders of America, and Florida Cattlewomen's Association. Sheremembers that, in 2015, she had approximately 60,000 Facebook followers, 4,500 Instagramfollowers, and 12,000 Twitter followers. She testified that she did not rememberhow many social media followers she had in 2014. 105-31, 101.The picture of Vickers was taken for a professional photography shoot in approximately2010. 105-31, 23-25.
Vickers was 'sure' that she published the picture on Facebook, mayhave shared it on Model Mayhem, Twitter, and Maxim.com. She did not recallwhether she signed a release with Maxim. The picture of Vickers was posted onApril 6, 2014.
1-4, 8.18.RosarioRosario has appeared in Maxim, FHM, GQ, Vogue, and in advertising campaigns forBudweiser, Comcast, Monster Energy Drinks, and Protein World. She remembershaving approximately 2,000,000 Facebook followers, 1,000,000 Instagram followers, and 80,000Twitter followers in 2015. She testified that she did know how many followers she had in132014. 105-32, 41-42. Rosario took the picture at issue in the instant action. 111, 51.She did not give anyone permission or authority to use the picture. The picture of Rosariowas posted on April 10, 2014.
1-4, 10.19.SkinnerSkinner has appeared in The Tonight Show with Jay Leno, Rules of Engagement, QVC,Shark, Las Vegas 'White Christmas,' CS! Miami, Maxim, Maxim (Spain), Maxim (Belgium),FHM, Muscle & Fitness, and Def Leppard's 'Nine Lives.' She has also appearedin advertising campaigns for Sketchers, Nordstrom, Fredericks of Hollywood, Tecate, and SkyyVodka. She recalls that in 2015, she had approximately 2,600 Facebook followers, 90,000Instagram followers, and 3,700 Twitter followers. She testified that she did not know howmany followers she had in 2012. 105-33, 79.The pictures of Skinner come from photography shoots for Dreamgirl and Savvy from2006 to 2010.
Skinner testified that she signed a 'type ofrelease' or otherdocuments with Dreamgirl. She also testified that she did not sign anycontracts or releases with Savvy Magazine related to the article and the publication of her image.Id. The pictures of Skinner were posted on November 24, 2012, January 16, 2014, andJanuary 24, 2014. 1-4, 12-14.20.WhittenWhitten has appeared in Maxim, Super Street, Modified Magazine, DSport, Pasmag, andSuper Street Bike, as well as advertising campaigns for Nos Energy Drink and Dodge. She remembers that in 2015 she had approximately 40,000 Facebook followers and 30,000Instagram followers. She testified that she did not know how many followers she had in2013.
105-34, 136.14The picture of Whitten is a picture that she took of herself during a 2010 photographyshoot for either Super Street or Imports. 105-34, 30-31. Whitten testified that she postedthe picture on her social media accounts but that she did not publish it anywhere else. At 32.The picture of Whitten was posted on January 27, 2013. 1-4, 16.B.DamagesPlaintiffs have not identified any engagement or other business opportunity that they didnot receive due to Defendants' alleged misappropriation of their images. It is alsoundisputed that Plaintiffs have not presented any evidence that their income as a model and/oractress decreased after, or as a result of, Defendants' social media posts.
Finally,it is undisputed that Burciaga, Hinton, Krupa, Wilcox, Underwood, Weber, and Selby havevoluntarily associated themselves with similar clubs in the past and that none of the Plaintiffswere aware of any ridicule connected with the use of their images in the social media posts inquestion. 108, 56.C.Procedural HistoryOn September 11, 2015, Plaintiffs' counsel sent a cease and desist letter to the SCEGroup. Plaintiffs filed a complaint on October 16, 2015. The complaintalleged false endorsement under the Lanham Act, civil rights violations under New Yok Statelaw, deceptive trade practices, defamation, negligence and respondent superior, conversion,unjust enrichment, and quantum meruit. 1, 27-35.On July 6, 2016, Defendants filed a third-party complaint against Creative Complex, Inc.,LR Graphics, LLC, d/b/a Sikgrfx, Luis Ramirez, and Pixel Robot, LLC. 8 This third-8On January 25, 2019, Plaintiffs filed a stipulation of voluntary dismissal against Lambros Mumouris, the owner ofSCE Group. 94.15party complaint is not at issue here.
On that same day, Defendants and Plaintiffs cross-movedfor summary judgment. 95, 99.II.StandardSummary judgment is appropriate where 'the movant shows that there is no genuinedispute as to any material fact.'
'An issue of fact is 'genuine' if theevidence is such that a reasonable jury could return a verdict for the non-moving party.' Elmsford Union Free Sch.
Dist., 812 F.Supp.2d 454,467 (S.D.N.Y. 2011) (citing SCR JointVenture L.P. Warshawsky, 559 F.3d 133, 137 (2d Cir.
A fact is 'material' if it 'mightaffect the outcome of the suit under the governing law.' (internal quotation marks omitted).The party moving for summary judgment is first responsible for demonstrating the absence ofany genuine issue of material fact.
Celotex Corp. Catrett, 477 U.S. 317,323 (1986). If themoving party meets its burden, 'the nonmoving party must come forward with admissibleevidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.' Montefiore Med. Ctr., 706 F.Supp.2d 494, 504 (S.D.N.Y.
2010) (internal quotationmarks omitted) (citing Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir.
2008)).However, 'When the burden of proof at trial would fall on the nonmoving party, it ordinarily issufficient for the movant to point to a lack of evidence to go to the trier of fact on an essentialelement of the nonmovant's claim.' Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir.2008).' When confronted with cross-motions for summary judgment, the Court analyzes eachmotion separately, 'in each case construing the evidence in the light most favorable to the nonmoving party.' ' Peterson v. 793 (JSR), 2013 WL 5226114, at.l(S.D.N.Y. 10, 2013) (quoting Novella v. Westchester Cty., 661 F.3d 128, 139 (2d Cir.162011)); see also Morales v.
Quintel Entm 't, Inc., 249 F.3d 115, 121 (2d Cir. 2001) ('Eachparty's motion must be examined on its own merits, and in each case all reasonable inferencesmust be drawn against the party whose motion is under consideration.' ) (citation omitted). TheCourt is not required to resolve the case on summary judgment merely because all parties movefor summary judgment.
Morales, 249 F.3d at 121.III.Discussion9Plaintiffs bring false endorsement, right to privacy, deceptive acts, and defamation claimsunder federal and state law.A.False Endorsement under § 43(A) of the Lanham ActSection 43 of the Lanham Act prohibits the use of a protected mark in a way that is likelyto cause consumer confusion 'as to the origin, sponsorship, or approval of defendants' goods.' § 1125 (a)(l)(A). To bring a false endorsement claim, Plaintiffs must show thatDefendants, '(1) in commerce, (2) made a false or misleading representation of fact (3) inconnection with goods or services (4) that is likely to cause consumer confusion as to the origin,sponsorship, or approval of the goods or services.' 59 Murray Enterprises, Inc., No. 8028 (NRB), 2019 WL 95564, at.5 (S.D.N.Y.
3, 2019) (internal quotation marks andcitation omitted). Because Defendants used Plaintiffs' pictures to advertise their commercialestablishments, there is no dispute about the first and third prong of the test.
The Courtaddresses the second and fourth prongs below.9Defendants argue that Mayes and Pepaj have released their claims but, as explained above, they have not providedany evidence that the releases that they reference cover the images at issue.171.False or Misleading Representation of FactPlaintiffs here never endorsed Defendants. As a result, the second element turns onwhether the social media posts imply that Plaintiffs endorsed Defendants. Beastie Boys v.Monster Energy Co., 66 F. 3d 424,449 (S.D.N.Y. 2014) ('The plaintiffs undisputedlynever endorsed defendant. The first Lanham Act element therefore turned on whether thevideo implied that the plaintiffs had done so, because any such implication was necessarilyfalse.' This inquiry consists of two questions: Do the posts contain an endorsement ofDefendants?
And if so, is that endorsement fairly attributed to Plaintiffs? 10As to the first question, the answer is yes. It is undisputed that Defendants made theseposts, or instructed the third-party advertisers to create them, to promote their business. Each appears on a social media page that prominently displays Defendants' name andmost advertise an event at one of Defendants' location.As to the second question, the answer is also yes. These endorsements imply anassociation between Plaintiffs and Defendants because they juxtapose Plaintiffs' pictures with10In false advertising cases, courts consider whether a statement is literally or impliedly false. Church & DwightCo. SPD Swiss Precision Diagnostics, GmBH, 843 F.3d 48, 65 (2d Cir.
'To establish literal falsity, aplaintiff must show that the advertisement either makes an express statement that is false or a statement that is falseby necessary implication, meaning that the advertisement's words or images, considered in context, necessarily andunambiguously imply a false message.' (internal quotation marks and citation mitted). 'If a message is notliterally false, a plaintiff may nonetheless demonstrate that it is impliedly false if the message leaves an impressionon the listener or viewer that conflicts with reality.' (internal quotation marks omitted). In false advertisingcases, this distinction matters because if a statement is literally false, a court may enjoin it without considering itsimpact on customers. This case law, however, is not particularly relevant here because it is unclear whether thisframework applies to false endorsement claims. Toth, 2019 WL 95564, at.5 ('But whether a representation isliterally or impliedly false is a question traditionally addressed within the context of false advertising claims broughtunder 15 U.S.C.A.
§ 1125 (a)(l)(B), not in the context of false endorsement claims brought under subsection (A) ofthe section'). More importantly, injunctive relief is not at issue here because Defendants have already removed thechallenged posts. However, to the extent that this framework does apply to false endorsement claims that only seekdamages, the Court finds, as explained below, that the posts are not literally false because they are open tointerpretation.18text referencing Defendants' clubs. Furthermore, a number of the posts describe the women,though not by name, who perform at the clubs directly under Plaintiffs' picture, and thereforeimply that Plaintiffs are the women that the posts describe.
112.Consumer ConfusionThe parties dispute whether the use of Plaintiffs' images caused consumer confusion. Toresolve this debate, the Court considers the '(l) strength of the trademark; (2) evidence of actualconsumer confusion; (3) evidence that the imitative mark was adopted in bad faith; (4) similarityof the marks;l1 2 (5) proximity of the products and their competitiveness with one another; and(6) sophistication of consumers in the relevant market.' Toth, 2019 WL 95564, at.6. Inapplying this test, the Court is mindful that 'no single factor is dispositive' and that 'eachfactor must be evaluated in the context of how it bears on the ultimate question of likelihood ofconfusion.
' Brennan's, Inc. Brennan's Rest., L.L.C., 360 F.3d 125,130 (2d Cir. Strength of the MarkThis is a false endorsement case-not a false advertising case. In this context, the Court,like other courts in this District, interprets the strength of the mark to mean 'the level ofrecognition the celebrity has among the segment of the public to whom the goods areadvertised.'
Bruce Lee Enterprises, LLC v. VE.LA., Inc., No. 2333 KMW, 2013 WL822173, at.20 (S.D.N.Y.
'The misappropriation of a completely anonymous11By way of example, some of the posts use the following language: '#hottest#bartenders&#waitresses;' 'HottestDancers, Waitresses, & Bartenders in #NewYork;' 'New York's Hottest Dancers, Waitresses, & Bartenders;'Come#Watch our #Gorgeous #Strippers#Waitress&#Bartender Staff.' Doc.1-1, 3,10, 12, 14, 18, 20, 22.12The parties agree that the marks are similar. 110, 12.13The Court need not analyze the similarity prong, the fourth factor, because the parties agree that this factor favorsPlaintiffs. 96, 13.19face could not form the basis for a false endorsement claim, because consumers would not inferthat an unknown model was 'endorsing' a product, as opposed to lending her image to acompany for a fee.' LASplash Cosmetics, No. 1417 SAS, 2012 WL 6150859,at.7 (S.D.N.Y.