WE BELIEVE THAT PLAINTIFFS’ COUNSEL IS USING
FACIAL RECOGNITION SOFTWARE TO LOCATE AND
IDENTIFY ALLEGED “MISUSE” OF THE SUBJECT
IMAGES. THIS MEANS THAT FOR SOME MODEL
THAT APPEARED YEARS AGO IN SOME FLEETING
INTERNET BLURB OR FACEBOOK POST, YOUR
CLUB COULD BE ON THE HOOK FOR BEING THE
RECIPIENT OF ONE OF THESE LAWSUITS.
continued from page 50
The plaintiffs have overwhelmingly speculated, with zero
basis to do so, that some idiot will think this “pretty face” will
be at a particular club, or that the “pretty face” endorses the
club. To make such a supposition is to impugn club patrons to
a level below imbecile!
Often, it is unknown if any graphic artist paid for any of the
photographs used by purchasing the photographs through
stock photography websites, such as shutterstock.com and/
or gettyimages.com. No actual website has been identified
as the source of the photos. Some stock photography
websites do not allow for the photograph to be used for “adult
entertainment,” but that beef would be between the stock
photo website and any subscriber, not the model. Since all of
the photographs were taken as part of a professional model
“shoot,” and the custom and practice for any professional
“shoot” requires a release of all rights to those photos to the
photographer, the “talent” depicted simply have no ownership
rights or other rights to assert in connection with the photos,
thus lacking standing to bring any action for the “use” of these
same photographs, under any theory.
We have argued that, based on the lack of any reference
in the complaint to any “copyright” holder, plaintiffs, absent
proof of copyright ownership, do not have standing to bring
this action. Because these “photographers” are not named,
we have sought dismissal of the complaints for multiple
reasons, including: (a) lack of subject matter jurisdiction as
the actions are preempted by the Copyright Act; (b) failure to
join an indispensable party, namely, the copyright holder of the
photographs; (c) failure to state a cause of action due to a lack
of standing and lack of rights in the photographs.
Plaintiffs are seeking damages in the millions of dollars.
To debunk that, we are in the process of propound discovery
to plaintiffs to learn the details of their claim, including each
plaintiffs’ employment history, earning potential, the extent
to which plaintiffs claim their images were used and any
agreements for the sale of the subject photographs to photo
stock companies.
During a recent conversation with defense counsel from
other firms in Florida and New York that are handling similar
claims, we believe that plaintiffs’ counsel is using facial
recognition software to locate and identify alleged “misuse”
of the subject images. This means that for some model
that appeared years ago in some fleeting internet blurb or
52 July 2016 Club Bulletin
Facebook post, your club could be on the hook for being the
recipient of one of these lawsuits.
In spite of this onslaught, there is some light at the end of
the tunnel. In one case involving the a club in South Florida,
during the oral argument on my Motion to Dismiss, the
Judge dismissed, completely, several counts and, stated that
“the plaintiffs shall be required to specify in the amended
complaint whether the plaintiffs are basing their claims on the
‘ownership’ of the photographs attached as exhibits to the
complaint, or whether they assert ‘ownership’ of the images
within the photographs, and distinguish between ‘images’ and
‘photographs’ in the claims asserted. The court indicated it
was going to dismiss the Florida Deceptive and Unfair Trade
Practices Act, and the unfair competition claims with prejudice,
a rare accomplishment for an initial Motion to Dismiss hearing.
Also conceded was the defamation claim: “this count has been
dismissed with prejudice by plaintiffs, and will not be repled.”
Apparently, the plaintiffs’ counsel were so concerned that there
might be an adverse order neutralizing many of their “counts,”
they dismissed the entire complaint.
The bottom line is that every club owner should have
some knowledge of where his or her promotional materials
are coming from. That being said, while there may or may
not be some value to having one’s image used to promote a
gentlemen’s club, no model, Playboy Playmate or otherwise,
can assume that modern society will think less of their “pretty
face” simply because a lawful business, which everyone
knows is protected by the First Amendment, and for which
vast resources have been expended to make the club a first-
class location, has “damaged” a model with by using her.
“pretty face” to promote any club. In any event, these cases
are being litigated extensively, there are valid defenses to
many of the claims, and I would respectfully suggest that they
be defended to the greatest extent possible. No one wants to
be “taken” by just another “pretty face.”
Luke Lirot has represented countless clients in the realm of
First Amendment litigation, as well as a wide variety of other
types of litigation, including Constitutional Law, Civil Rights,
Criminal Law, Entertainment Law, Land Use Law and Personal
Injury. Lirot is a past president of the First Amendment
Lawyers’ Association. He can be reached at luke2@lirotlaw.
com or by calling (727) 536-2100.
www.EDpublications.com

Club Bulletin July 2016 page 52