Gentlemen's clubs are facing ever-increasing litigation and administrative hurdles. As all clubs know, the primary threat has been claims involving independent contractor and wage and hour issues, however, a new target for increasing litigation has been the clubs' use of stock photography in marketing. Plaintiffs' counsel are targeting clubs with lawsuits that appear meritless, but, nonetheless demand millions of dollars in damages. The result is that clubs are now required to be hypersensitive as to where their marketing images come from.
These types of lawsuits primarily take two forms. The first type of lawsuit involves claims that the "model" in the photograph is being portrayed as endorsing the Gentlemen's Club using the photograph. The second form of lawsuit is that the photography of the model is being used in violation of the stock photography company's requirements. Both types of lawsuit, when brought by the model, are equally without merit.
The "endorsing" type suits involve models, through their attorneys, claiming that the use of their image implies endorsement of the gentlemen's club. This type of claim is particular troubling, and unsupportable, because it implies that the model would have to give formal approval to any use of the stock photograph at issue. However, the purpose of a "stock" photograph is the paid use of the photo for whatever purpose the purchase wishes, as long as it is in compliance with the rules agreed to in the purchase. Moreover, as seen below, the model does not even have rights to the stock photograph at issue.
The key defense in "endorsing" type suits is that photos belong to the photographer and not the model. Photographs taken as part of a commercial, professional photo "shoot" involve a release of all rights to those photos by the model. As a result, the model has no rights to assert in connection with those photos. This means that the copyright holder of the photographs is the photographer or whomever the photographer may have sold such rights to. Without enforceable rights, the model has no legal standing to bring such actions. To survive a Motion to Dismiss such actions, clubs typically argue that the Complaint lacks any reference to the copyright holder, and absent the participation in the suit by the photographer who owns the rights, the model lacks standing to even bring such a suit.
Gentlemen's Clubs have several basis for seeking to dismiss the Complaint in these endorsing-type actions. Such claims are subject to the Copyright Act and therefore jurisdiction to hear such claims lies in specific courts. Also, as the copyright holder is typically the photographer, the complaint can be dismissed for failure to include a indispensable party in the action when the action is brought by just the model. Finally, the most common basis for seeking to dismiss the complaint is that the complaint fails to state a cause of action because of the lack of standing of the model and the lack of rights in the photographs used by the club.
Both of these types of suits are usually coupled with a variety of other, equally meritless, claims. Such complaints may include claims for defamation, various deceptive or unfair trade practices laws, and unfair competition claims. However, each of these claims fail for the reasons stated above.
Nonetheless, despite the apparent meritless nature of these suits, these types of actions are becoming more and more prevalent. Indeed, some defense attorneys report an increased frequency of these types of suits on par with the increase of wage and hour suits brought against clubs. In fact, there is some evidence that some plaintiffs' attorneys have invested in, and deployed, advance facial recognition software to investigate potential plaintiffs for such causes of action. Therefore, gentlemen's' clubs now have to be prepared to address these types of suits as they come in.
Club owners should take the step of knowing where their marketing images are coming from. The primary defense to such suits is to prove the circumstances by which the images were acquired. Therefore, proving that the image came from a stock photography site, or that the necessary commercial releases exist in the case of images being used from local photographers is essential in getting these suits dismissed early with little cost.