IP Law Daily, PUBLICITY RIGHTS—D. Mass.: Limitations period barred majority of model photograph claims, (Dec 13, 2023)

By Kevin M. Finson, J.D.

The limitations period for various claims relating to unauthorized use of images of models was not extended because the models’ history of litigating unauthorized use of the same images showed the use of reasonable diligence would have allowed them to locate the allegedly infringing Facebook posts within the limitations period.

State law claims brought by models against an adult entertainment company for unauthorized use of the models’ photographs were barred by the applicable statute of limitations, the U.S. District Court in Boston has held. Further briefing was required to determine whether laches would bar related Lanham Act claims (Davalos v. Baywatch Inc., December 8, 2023, Gorton, N.).

Camila Davalos, Mariana Davalos, Jamie Middleton, Joanna Krupa, Marta Krupa, and Paola Canas (collectively, Models) were professional models who alleged that Baywatch, Inc., d/b/a Club Alex’s Adult Entertainment (Baywatch) misappropriated and altered their photographs in a series of Facebook posts to suggest a false association between them and the club between 2013 and 2015. The models brought suit under the Lanham Act and various state law claims for right of privacy, publicity, and related claims. Both sides moved for summary judgment.

Statute of limitations. Baywatch asserted, and the models did not dispute, that all nine state law claims were governed by a three-year statute of limitations. The models argued that the cause of action should not accrue under the discovery rule until they actually became aware of the posts, which was much later than when the posts were actually made. The court noted that the models had filed a total of 365 lawsuits concerning these same images and that some of those lawsuits dated back to 2016. As a result, it was not objectively reasonable to believe that the models were not aware of publicly available and searchable Facebook posts. Summary judgment in favor of Baywatch was granted in the state law claims.

Laches. Noting that the Lanham Act lacks a statute of limitations and that there is some dispute about whether to apply an analogous state law statute of limitations or the equitable doctrine of laches, the court held that the analogous state statute was the Massachusetts Consumer Protection Act, which had a limitations period of four years. If that standard were used, the Lanham Act claims would be time barred just as the state law claims. However, if laches were the applicable standard, the claims might not be time-barred. The court directed the parties to file supplemental briefing on whether laches applied, as that issue was not fully briefed.

The case is No. 1:21-cv-11075-NMG.

Attorneys: John V. Golaszewski (Casas Law Firm. PC) for Camila Davalos, Jamie Jeanelle Middleton d/b/a Jamie Eason and Joanna Krupa. Christopher A. Monson (Morrison Mahoney LLP) for Baywatch, Inc. d/b/a Club Alex's Adult Entertainment.

Companies: Baywatch, Inc. d/b/a Club Alex's Adult Entertainment

Cases: PublicityRights MassachusettsNews