Sampedro v. ODR Mgmt. Grp.

Claudia Sampedro, et al., Plaintiffs, v. ODR Management Group LLC, Defendant.

No. CV-18-04811-PHX-SPL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

May 25, 2021

ORDER

I. BACKGROUND

Plaintiffs are professional models, actresses, and social media personalities. (Doc. 1 at ¶ 1). Plaintiffs allege Defendant ODR Management Group LLC used their photos, which were posted on their own social media platforms, in advertisements and promotions for its night club, Cloud Nine, on social media without their consent and without negotiating or purchasing the right to do so. (Doc. 1 at ¶¶ 3-5). On December 19, 2018, Plaintiffs filed a Complaint in this Court alleging misappropriation of likeness, violation of the Lanham Act, and false light invasion of privacy. (Doc. 1 at 16-22). Before the Court are the parties' cross motions for summary judgment (Docs. 42 & 45).

II. LEGAL STANDARD

Summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party can satisfy this burden by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See id. at 322-23. When considering a motion for summary judgment, a court must view the factual record and draw all reasonable inferences in a light most favorably to the nonmoving party. Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002).

III. ANALYSIS

A. Misappropriation of Likeness

Defendant's only argument as to Plaintiff's misappropriation of likeness claim is that Arizona does not recognize a common law right of publicity. (Doc. 61 at 7-10); (Doc. 45 at 8-11). Even a cursory review of caselaw on this issue reveals that this Court has repeatedly rejected this exact argument. See, e.g., Geiger v. Creative Impact Inc., No. CV-18-01443-PHX-JAT, 2020 WL 3545560, at *7 (D. Ariz. June 30, 2020) (considering the exact same arguments as Defendant makes in this case and concluding that "the Court rejects Defendant's argument that Arizona law does not recognize a claim for appropriation"); Gray v. LG&M Holdings LLC, No. CV-18-02543-PHX-SRB, 2020 WL 6200165, at *3 (D. Ariz. Sept. 23, 2020) (same); Skinner v. Tuscan Inc., No. CV-18-00319-TUC-RCC, 2020 WL 5946898, at *5 (D. Ariz. Oct. 7, 2020) (same). This Court will not grant Defendant's Motion for Summary Judgment on this basis.

Defendant also argues that Plaintiffs' misappropriation of likeness claim is barred by the applicable statute of limitations. (Doc. 45 at 23). Defendant argues that, while "no case has ever addressed the applicable statute of limitations for such a claim," a one-year statute of limitations should apply because that is the statute of limitations for invasion of privacy cases. (Doc. 45 at 23). Plaintiff argues "this Court has already rejected, repeatedly, the argument that a one-year statute of limitations applies to Plaintiffs' right of publicity claims." (Doc. 59 at 17).

"When a defendant asserts the statute of limitations as a defense, the defendant has the burden of proving that the complaint falls within the statute." Troutman v. Valley Nat.Bank of Ariz., 826 P.2d 810, 814 (Ariz. Ct. App. 1992). In 2018, District Judge Susan R. Bolton rejected the argument that a one-year statute of limitations applies to misappropriation of likeness claims because, unlike invasion of privacy claims, the right of publicity is rooted in property and not privacy. Electra v. Idaho Business Holdings LLC, No. CV-18-01604-PHX-SRB, Doc. 79 at 5 (D. Ariz. Sept. 24, 2020) (determining that the right of publicity is more akin to a property right because it is intended to protect from injuries to the commercial value of a plaintiff's likeness, and is unlike a privacy right which protects "personal injuries of the sort remedied by a claim for, e.g., invasion of privacy by intrusion or publication of private facts") (citing Rstmt. 3d Unfair Competition § 46 cmt. a); In re Reynolds, 327 P.3d at 216 ("[T]he right of publicity is more akin to a property right, the breach of which is measured by resulting pecuniary loss, than a personal right whose violation results in emotional injury."). This Court has adopted this analysis several times. See, e.g., Skinner, 2020 WL 5946898, at *8 (adopting Judge Bolton's analysis and concluding that "Defendant's argument fails to prove the statute of limitations is one year"). Because Defendant has not met its burden of showing that a one-year statute of limitations applies (nor does it propose an alternative timeline), the Court cannot grant it summary judgment on Plaintiffs' Misappropriation of Likeness claims based on untimeliness.

Plaintiffs argue they, too, are entitled to summary judgment on their misappropriation of likeness claim. Under Arizona law, "'[o]ne who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for purposes of trade is subject to liability' for resulting damages." In re Estate of Reynolds, 327 P.3d 213, 215 ¶ 8 (Ariz. Ct. App. 2014) (alteration in original) (quoting Restatement (Third) § 46). A claim for appropriation typically arises from "the unauthorized use of a well-known person's name or likeness in connection with the advertising of goods or services." Id. at 216 ¶ 11. Nonetheless, appropriation of "the identity of an unknown person may possess commercial value" as well. Id. (citation omitted).

Where a defendant appropriates a plaintiff's "visual likeness," i.e., the plaintiff's image, the plaintiff must show that she is "reasonably identifiable from the photograph or other depiction." Restatement (Third) § 46 cmt. d. "Relevant evidence includes the nature and extent of the identifying characteristics used by the defendant, the defendant's intent, the fame of the plaintiff, evidence of actual identification made by third persons, and surveys or other evidence indicating the perceptions of the audience." Id. Whether the defendant's use of a plaintiff's image identifies the plaintiff is a question of fact. Id. Here, Plaintiffs' Motion for Summary Judgment (Doc. 42) must be denied as it is not "beyond controversy" that Defendant appropriated Plaintiffs' images as that finding must be made by the trier of fact. See S. California Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003); Geiger, 2020 WL 3545560, at *8.

B. Lanham Act

Plaintiffs next allege False Association under Section 43 of the Lanham Act, 15 U.S.C. § 1125, et seq. To prevail on their false association claims under the Lanham Act, Plaintiffs must prove that Defendant: "(1) use[d] in commerce (2) any word, false designation of origin, false or misleading description, or representation of fact, which (3) is likely to cause confusion or misrepresents the characteristics of his or another person's goods or services." Freecycle Network, Inc. v. Oey, 505 F.3d 898, 902 (9th Cir. 2007). Here, there are questions of fact as to the likelihood of confusion requirement which preclude summary judgment.

Under § 1125(a)(1)(A), "[a] false endorsement claim based on the unauthorized use of a celebrity's identity . . . alleges the misuse of a trademark, i.e., a symbol or device such as a visual likeness, vocal imitation, or other uniquely distinguishing characteristic, which is likely to confuse consumers as to the plaintiff's sponsorship or approval of the product." Wendt v. Host Int'l, Inc., 125 F.3d 806, 812 (9th Cir. 1997) (quoting Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1110 (9th Cir. 1992)). The Ninth Circuit has "identified eight factors-called the Sleekcraft factors—for determining whether a defendant's use of a mark is likely to cause consumer confusion: (1) the strength of the mark; (2) the proximity of the goods;(3) the similarity of the marks; (4) evidence of actual confusion; (5) the marketing channels used; (6) the type of goods and the degree of care likely to be exercised by the purchaser; (7) the defendant's intent in selecting the mark; and (8) the likelihood of expansion of the product lines." Gordon v. Drape Creative, Inc., 909 F.3d 257, 264 n.6 (9th Cir. 2018); AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979).

1. Strength of Plaintiffs' Marks

In cases involving an alleged celebrity, "'mark' means the celebrity's persona." White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1400 (9th Cir. 1992). The "strength" of a plaintiff's "mark refers to the level of recognition that the celebrity has among the segment of the public to whom the advertisement is directed." Downing v. Abercrombie & Fitch, 265 F.3d 994, 1007 (9th Cir. 2001).

Plaintiff argues that "[s]ince nothing in the record creates any material dispute that Cloud Nine used actual pictures of Plaintiffs in their advertisements, the 'similarity of marks' Sleekcraft factor could not more strongly favor Plaintiffs." (Doc. 42 at 10). In contrast, Defendant argues that "none of the Plaintiffs have provided any evidence to support their alleged celebrity status or recognition within the marketplace above and beyond what other courts have already held to be insufficient." (Doc. 45 at 14).

The strength of each Plaintiff's mark is a triable issue of fact. Each Plaintiff has a strong social media following, and some Plaintiffs have tens of millions of followers on some social media platforms. However, Plaintiffs' surveys indicate that only approximately 18.75% of individuals surveyed recognized the Plaintiffs. (Doc. 42 at 3). "A jury could reasonably conclude that, given each Plaintiffs' following and recognition rate, they are sufficiently well-known to claim false association; or it could...