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Passelaigue v. Getty Images (US), Inc.

United States District Court, S.D. New York

March 1, 2018

ELODIE PASSELAIGUE, on behalf of herself and all other persons similarly situated, Plaintiff,
v.
GETTY IMAGES (US), INC., BILL DIODATO PHOTOGRAPHY, LLC, and BILL DIODATO, Defendants.

          Thomas A. Canova Jack Fitzgerald Trevor M. Flynn Melanie Persinger The Law Office of Jack Fitzgerald, PC San Diego, California Counsel for Plaintiff

          Nancy E. Wolff Scott J. Sholder Cowan, DeBaets, Abrahams & Sheppard LLP New York, New York Counsel for Defendants

          OPINION & ORDER

          VERNON S. BRODERICK, United States District Judge:

         Plaintiff Elodie Passelaigue, a professional fashion model, brings claims under the Lanham Act, 15 U.S.C. § 1051 et seq., Washington State law, [1] and New York State law against Defendants Getty Images (US), Inc. (“Getty”), Bill Diodato Photography, LLC (“Diodato Photography”), and Bill Diodato (together, “Defendants”) relating to their alleged unlawful licensing and sale of images of Plaintiff that were eventually used to advertise synthetic beauty products. Before me is Defendants' motion to dismiss the complaint in its entirety. Because Plaintiff has failed to state claims for common law fraud, negligence, and deceptive practices under New York General Business Law Section 349, those claims are dismissed. In addition, because the Model Release signed by Plaintiff bars her claims as they relate to the 2004 Clinique photo shoot, Defendants' motion to dismiss Plaintiff's remaining claims of misappropriation of her likeness under New York Civil Rights Law Section 51, as well as unfair competition under the Lanham Act and New York law, is granted. Defendants' motion to dismiss with regard to these claims is denied, however, with respect to the photographs taken at the 2009 Spiegel photo shoot. Therefore, Defendants' motion is GRANTED IN PART and DENIED IN PART.

         I. Factual Background[2]

         Passelaigue is a “professional, internationally-renowned fashion model.” (Compl. ¶ 17.)[3]In the early 2000s, she was hired to work for Clinique, and remains one of Clinique's most recognized faces. (Id. ¶ 19.) As part of one advertising campaign in early 2004, Clinique sought to portray Passelaigue in images of her in water, showing part of her face above water, and part of her face and neck underwater. (Id. ¶ 20.) In order to test the feasibility of this idea, including whether lighting and other conditions would be acceptable, Clinique arranged for a test photo shoot in New York, (id. ¶ 21), and hired a local photographer, Defendant Bill Diodato, to take the photos, (id. ¶ 22).

         On February 9, 2004, Passelaigue posed for the Clinique underwater test photos in New York, which were taken by Diodato. (Id. ¶ 23.) After the test shoot, Diodato “asked Ms. Passelaigue if he could use photos from the test shoot for his portfolio and professional website simply as an example of his work.” (Id.) He “showed her a form document titled ‘Model Release, ' representing to Ms. Passelaigue that if she was willing to allow him to use the photos only for his portfolio and website, she just needed to sign the Model Release form.”[4] (Id.) Passelaigue agreed to allow him to use the photos for his website “[a]s a professional courtesy.” (Id. ¶ 24.) Diodato then took Passelaigue into a different room where she signed the Model Release document. (Id. ¶ 27.) At his direction, she also filled out additional items on the form, specifically her name, address, phone number, email address, and date of birth. (Id. ¶ 28.) She did not date the Release. (Id.) The document she signed “contained no signature of a photographer or any witnesses, did not set forth a photographer name in the two places where indicated, did not set forth the ‘Description of Shoot' where indicated, did not set forth the ‘Date' of Ms. Passelaigue's signature where indicated, did not have a mark in the box indicating the model is at least 18 years old, and did not ‘Attach a Copy of a Photo ID or Visual Reference' where indicated.” (Id. ¶ 29.) No one else was present when Plaintiff signed the Release. (Id. ¶ 27.)

         More than five years later, on June 11, 2009, Passelaigue was hired to model for a photo shoot in New York for Spiegel, a women's clothing and accessory company. (Id. ¶ 34.) Diodato photographed the shoot. (Id.) At the beginning of the Spiegel shoot Diodato tried to remind Passelaigue that they had meet on the 2004 Clinique photo shoot years before, but despite remembering the shoot, she did not remember Diodato as the photographer. (Id. ¶ 35.) Although Spiegel hired Passelaigue for “waist down” photographs, Diodato took about a dozen headshots of Passelaigue without Spiegel's consent, and told Passelaigue the headshots were “precautionary, in case Spiegel later decided it wanted to use the images for the cover of a catalog.” (Id. ¶ 36.) Passelaigue did not sign anything at the 2009 Spiegel photo shoot. (Id. ¶ 38.)

         Around August 2014, Passelaigue learned for the first time that headshot images of her were being used for an advertising campaign for Botox, “a prescription-only medicine manufactured by pharmaceutical giant Allergan, which is injected into muscles and used to temporarily improve the appearance of moderate to severe ‘crow's feet' lines and frown lines between the eyebrows.” (Id. ¶ 39.) She had never modeled for Botox or Allergan. (Id. ¶ 41.) Her image was also being used on an Allergan website, www.skinmedica.com, which belongs to “SkinMedica, an Allergan Company.” (Id.) The SkinMedica web pages feature Passelaigue's image advertising synthetic beauty products. (Id. ¶ 42.) The webpages also falsely suggest that Passelaigue is at least in her 40s, and contain various statements regarding health and physical side effects associated with the products. (Id. ¶ 43.) As of February 2016, Allergan continued to use Passelaigue's images in its advertising campaigns. (Id. ¶ 45.)

         Concerned for her professional image, and the potential impact the Allergan campaign would have on her “prospective assignments for companies that market ‘natural' cosmetic, skincare, and other beauty products, ” (id. ¶ 48), Passelaigue contacted her agent to look into the matter, (id. ¶ 49). Grey Advertising, the advertising agency for Botox, informed Passelaigue's agent that it had licensed the image from Getty. (Id.) Passelaigue's agent contacted Getty, which responded that “it had a valid release for her photographs.” (Id. ¶ 50.) Getty sent her agent a copy of the Model Release, which was redacted to “protect the photographer's identity.” (Id.) The Release contained Passelaigue's signature and written name, in Passelaigue's handwriting. (Id. ¶ 51.) However, it also contained a handwritten date of “6-11-09” under her name, and the phrase “Clinique Underwater Shot [sic] & Spiegel Beauty” on the line designated for “Description of Shoot, ” both written by someone else. (Id. ¶ 52.) Under the section titled “Attach a copy of a photo ID or visual reference here, ” the Release includes two sample headshots: one from the 2004 Clinique photo shoot, the other from the 2009 Spiegel photo shoot. (Id. ¶¶ 50, 53, 54.)

         Getty eventually identified the photographer as Adrianna Williams. (Id. ¶ 57.) Passelaigue discovered a number of photos associated with “Adrianna Williams” being offered for sale on the Getty website, including the photos from the 2004 Clinique and Spiegel photo shoots. (Id.) Numerous other models' photographs were also being offered for sale on the Getty website, purportedly taken by Adrianna Williams. (Id. ¶¶ 57-58.) Passelaigue's agent asked other models if they had ever worked with, or heard of, a photographer named Adrianna Williams, and none had. (Id. ¶ 58.) Passelaigue determined around the same time that the photographer-Adrianna Williams-was in fact Diodato. (Id. ¶ 60.)

         Passelaigue retained counsel, who convinced Getty to provide an unredacted copy of the Model Release, (id. ¶ 61), which is reproduced below:

         (Images Omitted)

(Id. Ex. 3.) The Release lists two purported witnesses: one, named “Lauren Benward, ” signed the Release and also included a handwritten printed name and date of “6-11-09;” however, the other witness's signature is illegible, and there is no printed name associated with it. (Id. ¶ 62.) In the bottom right-hand corner, the Release also contains the typed phrase “Rev'd 6-18-07.” (Id.)

         II Procedural History

         Passelaigue brought this action by filing a complaint on February 2, 2016, alleging claims for (1) misappropriation of likeness under New York Civil Rights Law Section 51; (2) deceptive acts and practices pursuant to New York General Business Law Section 349; (3) unfair competition under New York law; (4) negligence; (5) fraud; (6) Washington common law misappropriation of likeness; (7) violating the Washington consumer protection act; and (8) false advertising, false representation, false designation, unfair competition, and false endorsement and association under the Lanham Act. (Compl. ¶¶ 113-81.) Plaintiff also seeks to represent a class of “professional models whose photographs were taken by or on behalf of Diodato (including through Diodato Photography) and then conveyed to Getty in a manner by which the photographer has been identified by the pseudonym Adrianna Williams.” (Id. ¶ 104.) Before me is Defendants' motion to dismiss the Complaint in its entirety. (Doc. 44.)

         III Discussion

         A. The Release is Binding as to the 2004 Clinique Photo Shoot Only

         Defendants argue that all of Plaintiff's claims must be dismissed because she signed the Release, and that allegations of “doctoring” the Release are merely speculative. In response, Plaintiff asserts that she signed the Release after the 2004 Clinique photo shoot, and that a number of handwritten terms were not present on the Release when she signed it. I find Plaintiff's allegations plausible, and supported by the fact that the alleged execution date and description of the 2004 Clinique photo shoot are handwritten in what appears to be handwriting different from Plaintiff's. It is only because of the handwritten terms-the alleged doctoring- that the 2009 Spiegel photo shoot comes within the ambit of the Release. As a result, Plaintiff has plausibly alleged that the Release does not apply to the photographs from the 2009 Spiegel photo shoot.

         Assuming the Release was doctored as alleged in the Complaint, however, that does not make it inapplicable to the 2004 Clinique photo shoot, since Plaintiff admits she signed the Release at the Clinique photo shoot in 2004. Plaintiff argues that the Release is nevertheless unenforceable because (1) she was fraudulently induced to sign the Release and (2) the Release contains unconscionable terms. For the reasons that follow, Plaintiff fails to establish either that she was fraudulently induced into signing the Release with respect to the photographs from the 2004 Clinique photo shoot or that the terms of the Release are unconscionable.

         1. Fraudulent Inducement

         Where a party is fraudulently induced to enter into a contract, “the contract is voidable at the instance of the defrauded party.” Bazzano v. L'Oreal, S.A., No. 93 Civ. 7121 (SHS), 1996 WL 254873, at *3 (S.D.N.Y. May 14, 1996). “In New York a plaintiff alleging fraud must show by clear and convincing evidence that the defendant knowingly or recklessly misrepresented a material fact, intending to induce the plaintiff's reliance, and that the plaintiff relied on the misrepresentation and suffered damages as a result.” Merrill Lynch & Co. v. Allegheny Energy, Inc., 500 F.3d 171, 181 (2d Cir. 2007); see also Huntington Vill. Dental, PC v. Rathbauer, No. 34620-12, 2014 WL 5461544, at *4 (N.Y. Sup. Ct. 2014). In determining whether a plaintiff reasonably relied, courts consider “the entire context of the transaction, including factors such as its complexity and magnitude, the sophistication of the parties, and the content of any agreements between them.” Emergent Capital Inv. Mgmt., LLC v. Stonepath Grp. Inc., 343 F.3d 189, 195 (2d Cir. 2003). According to the New York Court of Appeals, where “facts represented are not matters peculiarly within the party's knowledge, and the other party has the means available to him of knowing, by exercise of ordinary intelligence . . . he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations.” Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 320 (1959) (quoting Schumaker v. Mather, 133 N.Y. 590, 596 (1892)). Thus, a party may not justifiably rely on a representation that is specifically disclaimed in a ...


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