There seem to be a lot of questions lately about the use of photographs on social media, so a recent federal court case may be of interest in raising some risks you may not have contemplated. The case involves some photos that professional models had posted to their social media pages, which they alleged had been copied and altered by a nightclub to make it appear that they worked at or endorsed the nightclub. (Moreland v. Beso Lounge & Restaurant LLC, case no. 3:19-cv-00958 (VLB) (D. Conn. Sept. 4, 2020) (2020 WL 5302312).)
The case is in the early stages, and this post relates to a recent opinion on defendants’ motion to dismiss three claims: false advertising under the federal trademark law known as the Lanham Act, “false light” under state law invasion of privacy; and “conversion” under state law.
False advertising under the federal Lanham Act
The court required the plaintiffs to prove four elements:
- The alleged misrepresentation must be made in “commercial advertising or promotion” in widespread communications;
- The alleged misrepresentation must include false statements regarding the ‘nature, characteristics, qualities, or geographic origin’ of ‘goods, services, or commercial activities;’
- The alleged misrepresentation must be shown to be false; and
- The plaintiff must show standing under both the Lanham Act and Article III of the U.S. Constitution.
(Citations omitted.) At this point in the proceedings, the court ruled that the plaintiffs had met all four elements.
The plaintiffs met the first element because the photos were used on defendants’ social media pages—a widespread form of commercial communication. The court ruled that the plaintiffs met the second element because the defendant’s use of their images without compensation on the nightclub’s social media pages constituted commercial activities. With respect to the third element, the court ruled that “Plaintiffs adequately allege that Defendants’ use of their images in advertising was false in that no Plaintiff appeared at or was in any way “affiliated with” Beso Lounge, but the posting of their image implied that they were affiliated with and endorsed the lounge.” Finally, the plaintiffs met the fourth element by showing that they had suffered economic injury by not receiving compensation for the use of their photos. Furthermore, the court found that the plaintiffs had suffered injury to their reputations by being associated with the nightclub. Consequently, the court denied the defendants’ motion to dismiss this count.
Our long-time readers may recall we covered a very similar case in 2017.
Privacy – “false light”
Although not one of the better known types of privacy claims, state common law typically permits an individual to sue for publicity that places the plaintiff in a “false light.” The court quoted the Restatement 2d of Torts for the elements of this claim:
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
Restatement 2d of Torts Section 652E (1977). With respect to the first element, because the models had alleged concern for their reputations, “Plaintiffs’ allegations that clients might refuse to hire Plaintiffs due to their perceived affiliation with a night club is evidence that Plaintiffs have at least pled that Defendants’ unauthorized use of Plaintiffs’ images was highly offensive.” The court found that, at this early stage, the plaintiffs had alleged that the defendants were aware that the plaintiffs were not associated with the nightclub yet the nightclub used their images in this manner. The court therefore denied the defendants’ motion to dismiss this claim.
Conversion
Like many states, Connecticut prohibits “conversion,” defined as the “unauthorized assumption and exercise of the right of ownership over property belonging to another, to the exclusion of the owner’s rights .” (Citation omitted.) The plaintiff needs to prove two elements: (1) a property interest and (2) that those property rights “have been dealt with in a manner adverse to [her], inconsistent with [her] right of dominion and to [her] harm.” (Citation omitted.)
The issue for the trial court was that Connecticut caselaw had established that the property interest needed to exist in tangible property. The court found that the last Connecticut case to rule on the issue was over 20 years old and that many other jurisdictions (including New York) have expanded conversion claims to include intangible property. Finally, the court stated: “Plaintiffs have alleged that their intangible rights were reduced to documents, namely, their photographs.”
The court had no trouble finding that the defendants “usurped Plaintiffs’ right of ownership over their images by using them without paying for them, thereby depriving Plaintiffs of the value of their use.”
Consequently, the court denied the defendants’ motion to dismiss this claim.
Takeaways
In addition to the copyright issues that arise in copying photographs, as well as right of publicity issues, unauthorized publication of photos can subject you to claims under the federal Lanham Act, as well as state law right of privacy and conversion claims. This case should serve as a reminder that, if you intend to post a photo on a social media site, you should have:
- Permission of everyone who appears in the photo to use the photo for your intended purpose; and
- Permission from the photographer.