Recent Cases Show How Little Your Image is Protected Online

Fenwick trademark litigation partner Eric Ball was quoted in Bloomberg Law article discussing recent cases that address how one’s image is protected online.

The article looks at the issue of image misuse in Toth v. 59 Murray Enterprises, in which several models filed lawsuits under the Lanham Act in the Southern District of New York against strip clubs who used their images in promotions without permission. Out of the 11 women who filed suit, the court only allowed one to move forward because the others did not meet the standard of being famous.

Because the Lanham Act covers false and misleading advertising, it can cover a famous person who would be expected to endorse products. Attorneys suggested that another common claim in this situation would be a right of publicity claim.

Ball noted that in these types of cases, recovery can be justifiably difficult. The right of publicity is a commercial right as opposed to a moral one.

“If your image isn’t worth anything, then you haven’t been damaged,” Ball said. And if you cannot show that you lost anything, then you cannot show damage. “The courts aren’t there to be an alternative to the lottery.”

“I think part of the issue is similar to other issues in the law, in that when damages are minimal to that non-famous person, it’s hard to identify counsel that are willing to pursue that case,” Ball said. “That’s common not just to right of publicity claims, but more generally in the legal profession.”

The full article is available on Bloomberg Law (subscription required).​


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