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Geiger v. C&G of Groton, Inc.

United States District Court, D. Connecticut

December 26, 2019

BRENDA LYNN GEIGER, CARISSA ROSARIO, TARA LEIGH PATRICK a/k/a CARMEN ELECTRA, JESSICA HINTON a/k/a JESSA HINTON, CORA SKINNER, DESSIE MITCHESON, HILLARY FISHER VINSON a/k/a HILLARY HEPNER, JAMIE EASON MIDDLETON, INA SCHNITZER a/k/a JORDAN CARVER, LUCY PINDER, MEGAN DANIELS a/k/a MEGAN VOGT, and VIDA GUERRA, Plaintiffs,
v.
C&G OF GROTON, INC. d/b/a MYNX GROTON, SERVICE ROAD CORPORATION d/b/a MYNX HARTFORD, and ALFRED CIRALDO Defendants.

          RULING AND ORDER ON MOTION TO DISMISS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         Brenda Lynn Geiger, Carissa Rosario, Tara Leigh Patrick a/k/a Carmen Electra, Jessica Hinton a/k/a Jessa Hinton, Cora Skinner, Dessie Mitcheson, Hillary Fisher Vinson a/k/a Hillary Hepner, Jamie Eason Middleton, Ina Schnitzer a/k/a Jordan Carver, Lucy Pinder, Megan Daniels a/k/a Megan Vogt, and Vida Guerra (collectively “Plaintiffs”) have sued C&G of Groton, Inc. (“Mynx Groton”), Service Road Corporation (“Mynx Hartford”) (collectively the “Clubs”), and Alfred Ciraldo (collectively “Defendants”) for allegedly violating the Lanham Act and a myriad of state law claims over the misappropriation and nonconsensual use of Plaintiffs'photographs.

         For the following reasons, the motion to dismiss is GRANTED in part and DENIED in part.

         Defendants' motion to dismiss is denied as to Plaintiffs' claims for false advertising, right to privacy - false light, CUTPA, defamation, and negligence. Those claims will proceed. Defendants' motion to dismiss is granted as to Plaintiffs' claims for conversion and quantum meruit.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations

         Each Plaintiff allegedly “is a well-known professional model who earns her livelihood modeling and licensing” her image for the purpose of advertising products and services. Compl. ¶ 24. Their modeling careers allegedly depend on “their good will and reputation, which is critical in order to maximize their earning potential, book modeling contracts, and establish each of their individual brands.” Id. ¶ 25. Each Plaintiff allegedly is selective about the companies or brands for which they model. Id.

         Mynx Groton and/or Mynx Hartford allegedly misappropriated each Plaintiffs' image and allegedly intentionally altered each Plaintiffs' image to advertise their association, affiliation, or endorsement of their businesses. Id. ¶ 26. Allegedly, the appearance of every Plaintiff was false. Id. ¶ 27. Nor did any Plaintiffs allegedly know of, consent to, authorize, or receive remuneration for the allegedly improper and illegal use of their images. Id. ¶ 28. In some instances, Defendants allegedly “misappropriated Plaintiffs' advertising ideas because the [i]mages they misappropriated [came] from Plaintiffs' own social media pages[.]” Id. ¶ 29.

         The Plaintiffs are and more specifically allege the following:

         Brenda Lynn Geiger allegedly has performed in the “Ms. Officer” music video with rapper Lil Wayne, worked for the magazine Glamour, and appeared on The Howard Stern Show in a Miss HTV March contest. Id. ¶ 30. Numerous men's magazines allegedly featured Ms. Geiger and she allegedly has participated in numerous product campaigns. Id.

         Plaintiffs' Exhibit A allegedly depicts Ms. Geiger in photos posted on the Mynx Groton or Mynx Hartford website. Id. ¶ 31; see also Pls.' Ex. A - Geiger, ECF No. 1-1 (Apr. 3, 2019) (“Geiger Photos”). The pictures allegedly are altered “to make it appear that [Ms.] Geiger was either a stripper working at Mynx Groton and/or Mynx Hartford, that she endorsed the Clubs, or that she was otherwise associated or affiliated with the Clubs.” Compl. ¶ 31. Ms. Geiger allegedly has never been to nor associated with either Club. Id. The unauthorized use of her image allegedly caused her to suffer, and will continue to cause her to suffer, damages. Id. ¶ 32.

         Carissa Rosario, allegedly internationally known with a very strong social media presence, has appeared in men's magazines, commercials for nationally-known beverage brands, and owns a perfume line. Id. ¶ 33.

         Plaintiffs' Exhibit B allegedly depicts Ms. Rosario in photos posted on the Mynx Groton and Mynx Hartford Facebook page. Id. ¶ 34. The pictures are allegedly “altered to make it appear that [Ms.] Rosario was either a stripper working at Mynx Groton and/or Mynx Hartford, that she endorsed the Clubs, or that she was otherwise associated or affiliated with the Clubs.” Id.; see also Pls.' Ex. B - Rosario, ECF No. 1-2 (Apr. 3, 2019) (“Rosario Photos”). Ms. Rosario has never been to, associated with, affiliated with, or hired to endorse either Club. Compl. ¶ 35. Ms. Rosario allegedly has not received remuneration for the “unauthorized use of her [i]mage[;]” she has suffered and will continue to suffer damages. Id.

         Tara Leigh Patrick a/k/a Carmen Electra allegedly “is a world famous actress, recording artist, and entrepreneur, ” with a substantial social media presence. Id. ¶ 36. First allegedly signed by the late recording artist Prince, who produced her first album, Ms. Electra allegedly has had a music career and also appeared in television shows, including as the host of WEtv's reality docu-series Ex Isle, and movies.

         Plaintiffs' Exhibit C allegedly depicts Ms. Electra in photos posted on the Mynx Groton and Mynx Hartford Facebook page. Id. ¶ 37; see also Pls.' Ex. C - Electra, ECF No. 1-3 (Apr. 3, 2019) (“Electra Photos”). The pictures are allegedly “altered to make it appear that [Ms.] Electra was either a stripper working at [the Clubs], that she endorsed the Clubs, or that she was otherwise associated or affiliated with the Clubs.” Id. ¶ 37. Ms. Electra allegedly has never worked at, been associated or affiliated with, or hired to endorse either Mynx Groton or Mynx Hartford. Id. ¶ 38. She allegedly has never received payment for the unauthorized use of her image and allegedly has suffered, and will continue to suffer, damages as a result. Id.

         Jessica Hinton a/k/a Jess Hinton allegedly “is a world renowned and highly sought after model, ” who has appeared in Playboy. Id. ¶ 39. She allegedly has “appeared in countless national commercial [campaigns] and television shows.” Id. Because of her advertising and promotional work, allegedly “[h]er images have likewise appeared on countless billboards, magazines, posters, and multiple forms of electronic media.” Id. Finally, she allegedly maintains “elite status as a social media celebrity[.]” Id.

         Plaintiffs' Exhibit D allegedly depicts Ms. Hinton in photos posted on the Mynx Groton and Mynx Hartford Facebook page. Id. ¶ 40; Pls.' Ex. D - Hinton, ECF No. 1-4 (Apr. 3, 2019) (“Hinton Photos”). In the pictures, Ms. Hinton allegedly appears to work as a stripper for the Clubs, endorse the Clubs, or otherwise associate with the Clubs. Compl. ¶ 40.

         Ms. Hinton allegedly never received payment for the unauthorized use of her image, has suffered, and allegedly will continue to suffer, damages as a result. Id. ¶ 41.

         Cora Skinner is allegedly an actress and a model for “a variety of internationally known brands[.]” Id. ¶ 42. She allegedly has appeared in Maxim, Playboy, and “has her own set of Bench Warmer trading cards.” Id.

         Plaintiffs' Exhibit E allegedly depicts Ms. Skinner in photos posted on the Mynx Groton and Mynx Hartford Facebook page. Id. ¶ 43; Pls.' Ex. E - Skinner, ECF No. 1-5 (Apr. 3, 2019) (“Skinner Photo”). In the pictures, Ms. Skinner allegedly appears to work as a stripper, endorse the Clubs, or otherwise maintains an association or affiliation with the Clubs. Compl. ¶ 44. She allegedly has never been employed at either Club, associated or affiliated with either Club, and never received payment for the unauthorized use of her image. Id. ¶ 44. As a result, Ms. Skinner allegedly has suffered damages and will continue to suffer damages. Id.

         Dessie Mitcheson allegedly is a professional model and actress. Id. ¶ 45. She allegedly has been the face of Playboy Intimates, MGM Grand Las Vegas, and Miss Pennsylvania Intercontinental. Id. Ms. Mitcheson allegedly has appeared in Maxim and “was featured as the main Tecate Beer ring girl in the biggest Pay-Per-View event in history, ” which created a huge demand for her services “and increased her daily quote substantially.” Id. She allegedly has worked in a variety of national advertising campaigns. Id.

         Plaintiffs' Exhibit F allegedly depicts Ms. Mitcheson in photos posted on the Mynx Groton and Mynx Hartford Facebook page. Id. ¶ 46; Pls.' Ex. F - Mitcheson, ECF No. 1-6 (Apr. 3, 2019) (“Mitcheson Photos”). The picture allegedly is altered “to make it appear that [Ms.] Mitcheson was either a stripper working at Mynx Groton and/or Mynx Hartford, that she endorsed the Clubs, or that she was otherwise associated or affiliated with the Clubs.” Id. Ms. Mitcheson allegedly has never been affiliated or associated with either Club, employed by either Club, or paid by either Club for the allegedly unauthorized use of her picture. Compl. ¶ 47. She allegedly has suffered damages and will continue to suffer damages as a result. Id.

         Hillary Fisher Vinson a/k/a Hillary Hepner allegedly is a model who earned the title of Miss Playboy Club of the Year in 2011 and allegedly served as “the face of Playboy Intimates in 2010. ” Id. ¶ 48. She allegedly has modeled for a variety of companies in calendars and advertisements. Id. ¶ 49.

         Plaintiffs' Exhibit G depicts Ms. Hepner in photos allegedly published on the Mynx Groton and Mynx Hartford Facebook page. Id.; Pls.' Ex. G - Hepner, ECF No.1-7 (Apr. 3, 2019) (“Hepner Photos”). The photos allegedly are designed to promote Ms. Hepner's association with Clubs-that she worked as a stripper working there, endorses the Clubs, or is affiliated with the Clubs. Id. Ms. Hepner, however, allegedly has “never been associated or affiliated with Mynx Groton or Mynx Hartford, has never been hired to endorse Mynx Groton or Mynx Hartford, [and] has received no remuneration for Defendants' unauthorized use of her [i]mage[.]” Compl. ¶ 50.

         Jaime Eason Middleton allegedly “is an American model, fitness model, businesswoman, nutritionist and spokeswoman.” Id. ¶ 51. She previously was employed as an NFL cheerleader and allegedly won “The World's Fittest Model Competition.” Id. She allegedly has appeared on the cover of many magazines, “is currently a full-time spokesperson for Bodybuilding.com . . . [, ]” and maintains a swimwear line. She allegedly maintains a large social media presence. Id.

         Plaintiffs' Exhibit H allegedly depicts Ms. Middleton in photos which were published on the Mynx Groton and Mynx Hartford Facebook page. Id. ¶ 52; Pls.' Ex. H - Middleton, ECF No. 1-8 (Apr. 3, 2019) (“Middleton Photos”). Ms. Middleton, however allegedly has never worked at, been associated or affiliated with either Club, nor received remuneration for the allegedly unauthorized use of her photo. Compl. ¶ 53. As a result, she allegedly has suffered damages and will continue to suffer damages. Id.

         Ina Schnitzer a/k/a Jordan Carver allegedly is a model and actress, “spokeswoman for German consumer electronics Redcoon, and has set a record by appear[ing] on the cover of Britain's Zoo Magazine six (6) times.” Id. ¶ 54. She allegedly has won modeling contests and maintains a substantial social media presence. Id.

         Plaintiffs' Exhibit I allegedly depicts photos of Ms. Carver posted on the Mynx Groton or Mynx Hartford Facebook page. Id. ¶ 55; Ps.' Ex. I - Carver, ECF No.1-9 (Apr. 3, 2019) (“Carver Photos”). The photos allegedly make it appear like Ms. Carver worked as a stripper at one of the Clubs, that she endorsed the Clubs, or maintained some degree of association or affiliation with the Clubs. Compl. ¶ 55. Ms. Carver, however, allegedly has never worked for either Club, associated with either Club, or compensated for the unauthorized use of her image by either Club. Id. ¶ 56. She alleged has suffered damages and will continue to suffer damages. Id.

         Lucy Pinder allegedly is “an English model, actress, host, businesswoman, and one of Great Britain's most famous glamour models.” Id. ¶ 57. She allegedly has appeared in countless magazines and has a developing acting career, appearing in TV shows and films. Id.

         Plaintiffs' Exhibit J allegedly depicts photos of Ms. Carver posted on the Mynx Groton or Mynx Hartford Facebook page. Id. ¶ 58; Pls.' Ex. J - Pinder, ECF No. 1-10 (Apr. 3, 2019) (“Carver Photos”). The photo was allegedly “intentionally altered to make it appear that [Ms.] Pinder was either a stripper working at Mynx Groton or Mynx Hartford, that she endorsed the Clubs, or that she was otherwise associated or affiliated with the Clubs.” Compl. ¶ 58. Ms. Pinder, however, has never worked at, been associated or affiliated with, or received payment for the allegedly unauthorized use of her image. Id. ¶ 59. She allegedly has suffered damages and will continue to suffer damages. Id.

         Megan Daniels a/k/a Megan Vogt allegedly “is an International DJ and model.” Id. ¶ 60. She has worked in a variety of advertisement campaigns and appeared on the cover of many magazines. Id. She has toured extensively, domestically and internationally, as a DJ and has headlined major music festivals. Id.

         Plaintiffs' Exhibit K allegedly depicts photos of Ms. Daniels posted on the Mynx Groton or Mynx Hartford Facebook page. Id. ¶ 61. The photo allegedly was altered “to make it appear that [Ms.] Daniels was either a stripper working at Mynx Groton and/or Mynx Hartford, that she endorsed the Clubs, or that she was otherwise associated or affiliated with the Clubs.” Id.; Pls.' Ex. K - Daniels, ECF No.1-11 (Apr. 3, 2019) (“Daniels Photos”). Ms. Daniels, however, allegedly has never been employed at, associated with, affiliated with, or endorsed either Club. Compl. ¶ 62. Furthermore, Ms. Daniels allegedly “has received no remuneration for Defendants' unauthorized use of her [i]mage” and has suffered damages, and will continue to suffer damages, as a result. Id.

         Vida Guerra allegedly works as an actress and model. Id. ¶ 63. She allegedly has received awards as a model and appeared in music videos for artists like Kanye West and Nelly. Id. In addition to these appearances, Ms. Guerra allegedly has posed in various magazines, “made multiple appearances on several Spanish language television programs, ” participated in commercials for various companies, and appeared in a video game. Id. She also allegedly produced her own swimsuit calendars. Id. Finally, Ms. Guerra is allegedly “in high demand as a spokeswoman for fitness equipment, and in television shows and movies, and has over 577, 000 [I]nstagram followers.” Id.

         Plaintiffs' Exhibit L allegedly depicts photos of Ms. Guerra posted on the Mynx Groton or Mynx Hartford Facebook page. Id. ¶ 64; Pls.' Ex. L - Guerra, ECF No. 1-12 (Apr. 3, 2019) (“Guerra Photos”). The photos allegedly were altered to make it appear Ms. Guerra worked at Mynx Groton or Mynx Hartford, endorsed either Club, or was somehow otherwise affiliated or associated with either Club. Compl. ¶ 64. Ms. Guerra, however, allegedly has never maintained an association or affiliation with either Club and has never been paid by either Club for the use of her picture. Id. As a result, Ms. Guerra allegedly has suffered and will continue to suffer damages.

         The Defendants allegedly engage “in the business of selling alcohol and food in an atmosphere were [sic] nude and/or semi-nude women entertain the business' clientele” and operate the social media accounts associated with each club. Id. ¶¶ 66-67. The social media accounts, including Facebook, Twitter, and Instagram, allegedly promote Mynx Hartford and Mynx Groton and attract clients. Id. ¶ 68. The use, advertising, creating, printing, and distributing of each Plaintiffs' image allegedly “created the false impression with potential clientele that each Plaintiff either worked as a stripperat Mynx Groton and Mynx Hartford, that she endorsed the Club, or that she was otherwise associated or affiliated with the Club.” Id. ¶ 70. The promotion and use of Plaintiffs' images allegedly benefitted Defendants through things like monetary payments, increased promotional advertising, marketing, notoriety, publicity, business revenue, profits, proceeds, and income. Id. ¶ 71.

         Plaintiffs further allege that Defendants “were at all times aware” that none of the Plaintiffs have ever been affiliated with, employed by, or associated with either club. Id. ¶ 72. The use of all of their photos were allegedly misappropriations of the Plaintiffs' images and “done without the knowledge or consent of Plaintiffs” or compensation. Id. ¶ 73.

         Within the modeling industry, there is allegedly a “particularized method and process” used to hire a model. Id. ¶ 75. Professional model fees allegedly involve consideration of: “a) the reputation, earning capacity, experience, and demand of that particular model; b) the location where the photo shoot takes place, and the length thereof; c) where and how the images are going to be used by the client (e.g., company website, social media, television commercials, billboards or posters), known as ‘usage'; and, d) the length of time (known as the ‘term') the rights to use the photos will be assigned.” Id. ¶ 76. One, two, or three-year terms are allegedly typical, but rarely last a lifetime. Id.

         Defendants allegedly “knowingly, and without the prior consent of any of the Plaintiffs, invaded Plaintiffs' privacy by using Plaintiffs' [i]mages for commercial purposes” and to promote their businesses. Id. ¶ 77. The images allegedly were used as marketing and promotional materials on the Clubs' website, Twitter, Facebook, and Instagram. The images posted on the Clubs' social media pages allegedly created “the false impression that Plaintiffs worked at Mynx Groton and Mynx Hartford, endorsed, promoted or sponsored same, or were otherwise associated or affiliated with same.” Id. ¶ 78. The images allegedly were used to attract clients, and thus, business revenue. Id. ¶ 79.

         The unauthorized use allegedly violated “Plaintiffs' right to privacy, Plaintiffs' right of publicity, and creat[ed] a false impression to potential customers that Plaintiffs worked at and/or endorsed Mynx Groton and Mynx Hartford.” Id. ¶ 80. The unauthorized use allegedly deprived Plaintiffs “of income they are owed relating to the commercialization of their [i]mages” and “substantially injures [the Plaintiffs'] careers.” Id. ¶ 81-82.

         B. Procedural History

         On April 3, 2019, Dessie Mitcheson, Megan Daniels, Tara Leigh Patrick, Hillary Fisher Vinson, Ina Schnitzer, Carissa Rosario, Vida Guerra, Jamie Eason Middleton, Brenda Lynn Geiger, Jessica Hinton, Lucy Pinder, and Cora Skinner (“Plaintiffs”) filed their Complaint. Compl., ECF No. 1 (Apr. 3, 2019).

         On July 11, 2019, the Court held a telephonic scheduling conference. Minute Entry, ECF No. 25 (July 11, 2019). The Court subsequently issued an initial scheduling order. Initial Scheduling Order, ECF No. 26 (July 11, 2019).

         On July 22, 2019, Plaintiffs filed an Amended Complaint against Defendants. Amended Compl., ECF No. 28 (July 22, 2019) (“Am. Compl.”).

         On July 31, 2019, Plaintiffs filed a Second Amended Complaint against Defendants. Second Amended Compl., ECF No. 30 (July 31, 2019) (“Compl.”).

         On August 2, 2019, Defendantsfiled a third-party complaint against Perfekta Creative Corporation. Third-Party ...


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