IP Law Daily, PUBLICITY RIGHTS—D. Mass.: Models’ suit against nightclub for misuse of their images mostly dismissed, (Mar 18, 2024)

By George Basharis, J.D.

The case involves a group of professional models and social media influencers who allege their images have been improperly used to promote night clubs offering adult entertainment.

The United States District Court for the District of Massachusetts has issued a ruling on the misuse of images involving several professional models and social media influencers. The lawsuit, akin to similar cases filed nationwide, was initiated by a group of well-known personalities with significant social media followings, alleging unauthorized postings of their images on a nightclub’s Facebook page. The models raised 12 claims stemming from these social media posts, including alleged violations of the Lanham Act and Massachusetts law. However, the court ruled in favor of the defendants, granting their motion for summary judgment on all counts except the defamation claims, as the models did not provide sufficient evidence of actual harm to their careers or reputations that could be directly attributed to the defendants’ actions (Ratchford v. Orange Lantern, Inc. , March 13, 2024, Mastroianni, M.).

Between 2010 and 2019, Orange Lantern, Inc. owned and operated Magic Lantern, a venue located in Palmer, Massachusetts, which employed women to entertain its customers while nude or semi-nude. In either 2010 or 2012, Orange Lantern contracted a third-party to manage Magic Lantern’s social media accounts. The contractor controlled Magic Lantern’s Facebook account until 2019, posting content to engage potential customers and enhance the Magic Lantern brand. The contractor, who had direct authority over Magic Lantern’s social media, was hired by one of Orange Lantern’s shareholders. Subsequently, the contractor began publishing high-quality images of women unrelated to Magic Lantern on the Facebook page. These images had previously appeared on the models’ personal social media accounts, websites, or in advertising campaigns for other businesses. The models had never consented to the use of their images by Magic Lantern.

The plaintiffs asserted 12 causes of action arising from the unauthorized social media postings: two federal claims alleging false advertising and false association, in violation of the Lanham Act, and ten claims under Massachusetts law. The state law claims were for the right of privacy, unauthorized use of a person’s name, portrait, or picture, unfair trade practices, defamation, negligence, unjust enrichment, and quantum meruit. The lawsuit was filed against Orange Lantern and its shareholder, who hired the social media contractor to maintain Magic Lantern’s social media.

Orange Lantern and the shareholder moved for summary judgment on all claims. As a preliminary matter, the court denied the defendants’ motions to exclude the plaintiffs’ experts, allowing expert testimony on the commercial value of the models’ images and the consumer confusion caused by the Facebook postings. However, the court dismissed all claims against Orange Lantern’s shareholder. The court noted that although a reasonable jury could conclude that the shareholder acquiesced to the posting of the images, there was no evidentiary basis for a jury to find that he played an active role in selecting images or directing the contractor’s actions.

Furthermore, the court allowed the defendants’ motion for summary judgment on the Lanham Act claims, finding the models failed to show an economic or reputation injury directly associated with the unauthorized use of their images. Orange Lantern’s decision to use the models’ images without permission deprived the models of the opportunity to be compensated for their appearances on Magic Lantern’s Facebook page; however, that economic injury was completely independent of any misperceptions of an association between the models and Magic Lantern created by the Facebook postings, according to the court.

The plaintiffs’ unfair trade practices claim under state law was dismissed for similar reasons: there was no evidence of a “loss of money or property” caused by Orange Lantern’s misleading use of the models’ images. Their tort claims did not fare any better. The plaintiffs’ right to privacy claim was dismissed because the posting of publicly available images to social media did not involve any private information. Their claim for unauthorized use of a person’s name or picture was dismissed because none of the models lived in Massachusetts, and the cause of action is available only to plaintiffs domiciled in the state. The models’ negligence claims were dismissed because they could not identify a duty of care owed to them by Orange Lantern. Their claims for unjust enrichment and quantum meruit were dismissed because the plaintiffs could not reasonably expect compensation from Orange Lantern since they had no knowledge of Magic Lantern or its Facebook page.

Finally, the plaintiffs asserted that the Facebook postings were defamatory because they falsely implied that the models had agreed to be associated with Magic Lantern. The court found that the postings were reasonably susceptible to a defamatory meaning, as they could be interpreted as falsely stating an affiliation, which could potentially damage the models’ reputations by implying an association with the defendants' strip club. However, the court also noted that the postings could be subject to other non-defamatory interpretations. Additionally, the defamation claims were based on images posted to Magic Lantern’s social media pages more than three years before this action was filed, potentially rendering them time-barred. Nonetheless, the case was stayed pending a decision from the Massachusetts Supreme Judicial Court on the application of the discovery rule to defamation claims arising from social media postings.

The case is No. 3:19-cv-30092-MGM.

Attorneys: John V. Golaszewski (Casas Law Firm, PC) and Paul V. Sullivan (Sullivan Law Offices, PC) for Abigail Ratchford, Andra Cheri Moreland and Arianny Celeste Lopez. Daniel J. O'Connell (O'Connell &, Plumb, P.C.) for Orange Lantern, Inc. and Mark Pessolano.

Companies: Orange Lantern, Inc.

Cases: PublicityRights Trademark MassachusettsNews GCNNews