Daily Dicta: Swingers Club Hit With $900,000 Verdict for Unauthorized Photo Use
The models discovered their (clothed) photos being used alongside hardcore pornography in ads for a 16,000-member swingers club to promote spouse swapping and other "alternative lifestyle" events.
September 18, 2019 at 12:27 PM
4 minute read
File this one under 'What were they thinking?'
A swingers club was hit with a $900,000 penalty by a federal jury in Miami for using unauthorized photos of 32 models to promote spouse-swapping and other "alternative lifestyle" events.
The club, Miami Velvet, is not some hole in the wall. According to the plaintiffs lawyers, it has 16,384 paying members, some of whom travel across the world to attend its events. (FYI, tonight is "Party Like a Porn Star.")
So imagine you're a successful model—not world-famous, but making a living, like Joanna Krupa (above), who was on "The Real Housewives of Miami" or "Deal or No Deal" model Cora Skinner or Kim Cozzens, a former Old Spice spokeswoman who was in a commercial with George Clooney.
And then you discover your (clothed) photos being used alongside hardcore pornography in ads for the club. We're talking images "too obscene and offensive, in fact, to even include as an exhibit to this publicly-filed complaint," per plaintiffs lawyers from Akerman (though they did describe them and…ick. Especially one involving 14 Sharpie markers, "where the consent of the individual depicted in the photo is itself in question.")
"Much more than merely a misuse in connection with an innocuous brand or event, defendants' have defamed and embarrassed plaintiffs by associating their images with defendants and the club," wrote Akerman's Naim Surgeon in a 681-page complaint filed in 2015 in the Southern District of Florida alleging false advertising and false endorsement in violation of the Lanham Act.
"Defendants never sought consent or authority through appropriate channels to use any of the plaintiffs' images for any purpose," Surgeon wrote. "Had each plaintiff been afforded the opportunity to consider whether to consent and release rights as to the use or alteration of any image, each plaintiff would have promptly and unequivocally declined."
Defense counsel Luke Lirot of The Law Offices of Luke Lirot in a motion to dismiss argued that the women consented to the public use and dissemination of the photographs when they signed model releases, and that they suffered no commercial harm.
He also tried a variation of she-was-asking-for-it: "The plaintiffs dressed in a provocative manner, and assumed poses of a seductive nature, and therefore assumed the risk that the images could be used for promotion of themes and/or businesses related to adult entertainment," he wrote.
Lirot did not respond to a request for comment.
In 2017, U.S. District Judge Joan Lenard ruled that the plaintiffs were entitled to summary judgment on liability.
"Defendants knew that they needed authority or releases to use a model's image," she found. "Defendants never obtained plaintiffs' consent to use their images in their promotional advertising and had no authority to use any plaintiff's image for any purpose whatsoever."
She continued, "It is undisputed that being associated with the club would cause harm to a person's professional reputation… the only dispute is the valuation of those damages."
After a one-week trial before U.S. District Judge Jose E. Martinez (Judge Lenard retired), the jury deliberated for just over two hours before returning a verdict late Monday. The jurors awarded each plaintiff damages ranging from $12,500 to $65,000, for a total of $892,500
It was considerably less than the $5 million-plus the plaintiffs originally sought, but Surgeon said he was nonetheless pleased with the verdict. "I think they got it right," he said.
He also applauded the underlying message. "You have to obtain consent," he said. "You don't just get to use anyone's image or likeness."
"The models care about which brands they are associated with, and the choice whether to align themselves with certain brands or not," he continued. "They've done all kinds of work, but in each case, they got to control it."
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