Gibson v. Sce Grp., Inc.

391 F.Supp.3d 228

Cielo Jean GIBSON, Jessica Burciaga, Paola Cañas, Joanna Krupa, Sara Underwood, Brittany Wilcox, Jessica Rockwell, Tal Berkovich, Tiffany Selby, Vida Guerra, Alicia Whitten, Anya Monzikova, Ashley Vickers, Carissa Rosario, Cora Skinner, Eva Pepaj, Irina Voronina, Jamillette Giaxiola, Ursula Mayes, Jessa Hinton, Sheena Lee Weber, Plaintiffs,

v.SCE GROUP, INC., d/b/a Sin City Cabaret ; 21 Group, Inc., d/b/a Show Palace Gentlemen's, Defendants.

15 Civ. 08168 (ER)

United States District Court, S.D. New York.

Signed July 17, 2019

John Vincent Golaszewski, Orans, Elsen, Lupert & Brown LLP, New York, NY, for Plaintiffs.

Courtney E. Murphy, Eric Thomas Krejci, Clausen Miller P.C., New York, NY, for Defendants.

OPINION & ORDER

RAMOS, D.J.:

Plaintiffs, twenty models and a model's sister, bring this action against two clubs, which feature partially nude dancers, because those clubs used Plaintiffs' pictures without their consent in advertisements for the clubs. The parties have cross moved for summary judgment. For the reasons set forth below, Defendants' and Plaintiffs' motions for summary judgment are GRANTED in part and DENIED in part.

I. Background¹

Defendant SCE Group, Inc. ("SCE") owns and operates a club known as Sin City Cabaret, which is located at 2520 Park Avenue, Bronx, New York. Doc. 108, 2. Defendant 21 Group, Inc. ("21 Group") owns and operates a club known as Show Palace Gentlemen's Club, which is located at 45-20 21st Street, Long Island City, New York. Doc. 108, 2. Both clubs also operate related social media accounts. Doc. 111, 63. Constantine Drakopoulos, the general manager of SCE Group, oversaw all marketing and social media for Show Palace and Sin City and served as their Rule 30(b)(6) witness. 105-5, 19, 31, 118.

SCE and 21 Group concede that the pictures of the Plaintiffs at issue herein appeared on their respective Instagram and Facebook accounts. Doc. 108, 2. Drakopoulos testified that at different times either Mike Diaz, a manager of 21 Group, or Creative Complex, an advertising agency retained by Defendants, posted the images. Doc. 111, 66.

Drakopoulos testified that Diaz found the images that he personally posted on Google and believed that the images could be used in the clubs' social media accounts because it was his understanding that any image on the internet could be used for commercial purposes. Id. at 67. Drakopoulos testified that Diaz would only post an image if "there [wa]s no warning or restrictions or anything that says not to use the image." Doc. 105-5, 202. Drakopoulos further stated that Defendants searched for the pictures by theme, such as "sexy girl in a military outfit," and not by the names of any of the models.

With respect to the images posted by Creative Complex, Drakopoulos testified that Creative Complex told him that it purchased the pictures to create the posts. Doc. 105-5, 130–131. He later stated more broadly that Creative Complex "always purchase[d] their images" and that it "bought them through Shutterstock." Id. at 135–137, 261–262.

Drakopoulos also testified that neither of the clubs had a contract with any of the Plaintiffs, that he never saw or sought contracts between any third-party graphic designers and Plaintiffs, that he did not know the names of any of the Plaintiffs when the pictures were published, and that, prior to being served with the complaint, he had not heard of any of the plaintiffs in this suit. Doc. 105-5, 37–38, 56–57, and 191. Moreover, Drakopoulos testified that there did not seem to be a relationship between the alleged fame or notoriety of the models and the effectiveness of the advertisements because the profits generally remained the same for each event, regardless of the identity of the model used in the social media posts relating to those events. Doc. 108, 35.

A. The Use of Plaintiffs' Images

The images posted on Defendants' Facebook and Instagram accounts featured Cielo Jean Gibson, Paola Cañas, Jessica Burciaga, Ursula Mayes, Jessica Hinton, Joanna Krupa, Brittany Wilcox, Jessica Rockwell, Sara Underwood, Anya Monzikova, Sheena "Lee" Weber, Tal Berkovich, Vida Guerra, Eva Pepaj, Tiffany Selby, Irina Voronina, Jamillette Gaxiola, Ashley Vickers, Carissa Rosario, Cora Skinner, and Alicia Whitten.² According to Drakopoulos, Defendants selected these pictures to imply that their performers are attractive. Doc. 111, 68.

1. Gibson

Gibson has served as a model for the Falken Drift Team, Short Block Technologies, and Top Rank Boxing. Doc. 111, 7. To the best of her recollection, she had approximately 50,000 Instagram followers in 2015. Doc. 102-4, 3. She testified that she did not have as many followers in 2013 as she did in 2015 but she did not know the specific number. Doc. 105-14, 68–69.

The picture Defendants posted of Gibson is from a 2002 or 2003 photography shoot. Doc. 111, 9. For that shoot, Gibson gave the photographer limited permission to use her image. Doc. 111, 9. According to timestamps on Instagram, the picture of Gibson was first posted in the week of July 16, 2013. 1-1, 2–4.³

2. Cañas

Cañas has served as the face for Curve Lingerie, Masters Gold Tournament in Dubai, and the International Surf and Sport Expo in Orlando, Florida. Doc. 111, 12. Additionally, she has appeared on numerous television shows and worked for SOHO, KISS Underwear, Salon International, Zona Rosa, and Esteban Escobar. Id. at 12. To the best of her recollection, approximately 100,000 people followed her Instagram account in 2015. Id.

The two pictures of Cañas come from a 2011 or 2012 shoot for Espiral Catalog. Doc. 111, 14. Cañas testified that she signed an agreement with Espiral Catalog and that the contract only allowed the images to be used for the brand. Doc. 105-15, 49. According to time stamps on the pictures, the most recent picture was posted during the week of September 21, 2014. Doc. 1-1, 6–15. These images were posted by Creative Complex. Doc. 108, 32.

3. Burciaga

Burciaga has appeared in Playboy, Maxim, Import Tuner, Modified Mag, Performance Auto & Sound, Show Latina, and Lowrider magazines. Doc. 111, 9. To the best of her recollection, she had 35,000 Facebook followers, 1,200,000 Instagram followers, and 150,000 Twitter followers in 2015. Id.

One picture of Burciaga is from a 2006 shoot for Stuff magazine. Doc. 111, 11.⁴ Burciaga testified that she signed a release with Stuff magazine and that she could not recall the details of the release. Doc. 105-16, 65–66. According to timestamps on the social media posts, the pictures were posted on January 25, 2013, November 15, 2013, January 19, 2014, and on certain dates 87 weeks, 49 weeks, and 15 weeks before August 4, 2015. Doc. 1-1, 17–27. Creative Complex posted all of these images except for the one posted 15 weeks before August 4, 2015. Doc. 108, 32.

4. Mayes

Mayes has appeared in Deal or No Deal, Minute to Win It, The Tonight Show, The Jay Leno Show, and Vogue, Elle, In Style, Cosmopolitan, and Marie Claire magazines. She works for CESD Talent Agency, Brand Model & Talent Agency, and Abstract Talent Agency. Doc. 111, 15. In her declaration, she testified that she had approximately 10,000 Facebook followers and 5,000 Instagram followers in 2015. Id. She did not know how many followers she had in 2013. Doc. 105-16, 93–94.

All of the pictures of Mayes, except for one that she took herself, were shot for Dreamgirl Magazine between 2005 and 2007. Doc. 105-16, 23–24. Defendants have provided contracts between Mayes and Dreamgirl Magazine because Plaintiffs produced them in discovery for other cases. Doc. 105-51, 9–20.⁵ Each contains a release but with slightly different language. The 2007 release gave "permission for Dreamgirl to produce, copyright, and/or publish my photograph or images." Id. at 19.⁶ The posts of Mayes occurred on March 13, 2013, July 1, 2013, December 29, 2013, and 107 weeks, 45 weeks, 25 weeks before August 4, 2015. Doc. 1-2, 2–9. All of these images, except for those posted on December 29, 2013, and March 13, 2013, were posted by Creative Complex. Doc. 108, 32.

5. Hinton

Hinton has modeled for Playboy, FHM, Kandy, MMA Sports, Guitar World, and Muscle & Fitness magazines, Milwaukee's Best Beer, Affliction Clothing, Enzo, Milano Hair Products, PEVIV Wellness Spa, Protein World, Rhonda Shear Shapewear, Leg Avenue, and Roma Costume. Doc. 111, 19. She has appeared on Victory Poker and Top Rank Boxing. Id. To the best of her recollection, she had 1,500,000 social media followers in 2015. Doc. 111, 19. She did not know how many followers she had in 2014. Doc. 105-18, 95–96. The three pictures of Hinton are from an Elegant Moments photography shoot in 2013 or 2014, a Playboy photography shoot in 2011, and an Affliction photography shoot in 2011 or 2012. Doc. 111, 21.⁷ Two of Hinton's pictures were posted on April 4, 2014, and February 21, 2014. Doc. 1-2, 11–13. The last picture lacks a timestamp.

6. Krupa

Krupa has appeared in Max Havoc: Curse of the Dragon, Superstars, Dancing with the Stars, Poland's Top Model, The Real Housewives of Miami, and Playboy, Personal, Steppin' Out, Envy, Shape, FHM, Stuff, Inside Sport, Teeze , and Maxim magazines. Doc. 111, 21–22. She was also named the "Sexiest Swimsuit Model in the World," Germany's Maxim "Model of the Year," and number 55 on Maxim 's "Hot 100" list. Doc. 111, 22. Id. She declared that, in 2015, she had approximately 800,000 Facebook followers, 800,000 Instagram followers, and 800,000 Twitter followers. Id. She did not know how many followers she had in 2013 or 2014. 105-19, 177–178.

According to Krupa's declaration, her pictures come from a Spec photography shoot in approximately 2013 and from a Femme Fatales Magazine shoot in approximately 2006. Doc. 102-4, 4–5. In her deposition, however, she testified that one image could have come from a Poker Magazine photography shoot from 2007. 105-19, 40. She testified that "either myself or an agent or manager at the time probably" signed a release or other documents related to this...