Longoria v. Kodiak Concepts LLC ( 2021 )

Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 1 of 32 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jaime Edmondson Longoria, et al., No. CV-18-02334-PHX-DWL 10 Plaintiffs, ORDER 11 v. 12 Kodiak Concepts LLC, et al., 13 Defendants. 14 15 Pending before the Court are the parties’ cross-motions for summary judgment. 16 (Docs. 49, 50.) For the following reasons, both motions are granted in part and denied in 17 part. 18 BACKGROUND 19 Defendant Kodiak Concepts, LLC (“Defendant”) owns and operates a strip club 20 called The Great Alaskan Bush Company Gentlemen’s Club (“the Club”) in Phoenix, 21 Arizona. (Doc. 1-3 ¶¶ 19-20.) Plaintiffs are “models, business women, and well-known 22 social media personalities.” (Id. ¶ 1.) This case arises from Defendant’s unauthorized use 23 of Plaintiffs’ images and likenesses in advertisements appearing on the Club’s social media 24 accounts. (Id. ¶ 3.) This is one of several similar cases in this district.1 25 1 All cases relate to the unauthorized use of models’ photographs and raise similar claims. See Skinner et al v. Tuscan Incorporated et al, No. CV 18–319–RCC (D. Ariz. 26 July 2, 2018); Mitcheson v. El Antro, LLC, No. CV 19–1598–GMS (D. Ariz. March 8, 2019); Pepaj v. Paris Ultra Club, LLC, No. CV 19–1438–MTL (D. Ariz. March 1, 2019); 27 Ratchford v. Dalton Corp., No. CV–19–1421–SRB (D. Ariz. Feb. 28, 2019); Longoria v. Whitefeather Ventures, LLC, No. CV–18–394–SHR (D. Ariz. Aug. 10, 2018); Gray v. 28 LG&M Holdings, LLC, No. CV–18–2543–SRB (D. Ariz. Aug. 10, 2018); Takeguma v. Freedom of Expression, LLC, No. CV–18–2552–MTL (D. Ariz. Aug. 10, 2018); Pinder v. Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 2 of 32 1 On June 1, 2018, Plaintiffs filed suit in Maricopa County Superior Court. (Doc. 1- 2 3 at 2-21.) On July 25, 2018, Defendant removed the case to federal court.2 (Doc. 1.) 3 In their complaint, Plaintiffs allege the following misuses of their images and 4 likenesses: 5 • On or about August 8, 2015, Defendant posted Iglesias’s image on the Club’s 6 Facebook page. (Doc. 1-3 ¶ 41.) 7 • On or about November 19, 2016, Defendant posted Pinder’s image on the Club’s 8 Instagram page. (Id. ¶ 40) 9 • On or about April 18, 2017, Defendant posted Hinton’s image on the Club’s 10 Facebook page. (Id. ¶ 39.) 11 • On May 3, 2017, Defendant posted Canas’s image on the Club’s Yelp page. (Id. ¶ 12 42.) On May 4, 2017, and December 16, 2017, Defendant posted Canas’s image on 13 the Club’s Instagram page. (Id.) Between May 30, 2017, and September 18, 2017, 14 Defendant posted Canas’s image on the Club’s Facebook page ten different times. 15 (Id.) 16 • On August 21, 2017, Defendant posted Longoria’s image on the Club’s Facebook 17 page twice. (Id. ¶ 38.) 18 Plaintiffs allege that the use of their images on the Club’s social media accounts was 19 without permission or consent, was for commercial purposes, and created the false 20 perception that they had agreed to promote or endorse the Club. (Id. ¶¶ 38-41.) Plaintiffs 21 also allege that Defendant never hired, contracted with, employed, or paid them. (Id.) 22 All five Plaintiffs assert claims for false association and false advertising under the 23 Lanham Act, 15 U.S.C. § 1125(a). (Id. ¶¶ 56-74.) Four of the Plaintiffs (all but Iglesias) 24 also assert state-law claims of misappropriation of likeness (id. ¶¶ 43-55) and false light 25 invasion of privacy (id. ¶¶ 75-84). 26 4716 Inc., No. CV–18– 2503–RCC (D. Ariz. Aug. 7, 2018); Electra v. Id. Business 27 Holdings, LLC, No. CV–18– 1604–SRB (D. Ariz. May 25, 2018); Geiger v. Creative Impact Inc., No. CV–18–1443– JAT (D. Ariz. May 10, 2018). 28 2 This case was reassigned to the undersigned judge on October 31, 2018. (Doc. 18.) -2- Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 3 of 32 1 On March 30, 2020, the Court issued an order denying Defendant’s motion to sever 2 Plaintiffs’ claims. (Doc. 43.) 3 On July 31, 2020, Plaintiffs filed a motion for summary judgment (Doc. 49) and a 4 motion to exclude the expert opinions of Michael Einhorn (Doc. 45). That same day, 5 Defendant filed a motion for summary judgment (Doc. 50) and motions to exclude the 6 expert opinions of Martin Buncher (Doc. 51) and Stephen Chamberlin (Doc. 52). All five 7 motions are fully briefed. 8 On March 1, 2021, the Court issued a tentative order addressing the three motions 9 to exclude expert testimony. (Doc. 69.) 10 On March 9, 2021, the Court issued a tentative order addressing the cross-motions 11 for summary judgment. (Doc. 70.) 12 On March 10, 2021, the Court heard oral argument on the motions to exclude expert 13 testimony and the cross-motions for summary judgment. (Doc. 71.) 14 DISCUSSION 15 I. Legal Standard 16 “The court shall grant summary judgment if [a] movant shows that there is no 17 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 18 of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ only if it might affect the outcome of 19 the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue 20 in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 21 1119, 1125 (9th Cir. 2014). The court “must view the evidence in the light most favorable 22 to the nonmoving party and draw all reasonable inference in the nonmoving party’s favor.” 23 Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). “Summary judgment is 24 improper where divergent ultimate inferences may reasonably be drawn from the 25 undisputed facts.” Fresno Motors, 771 F.3d at 1125. 26 A party moving for summary judgment “bears the initial responsibility of informing 27 the district court of the basis for its motion, and identifying those portions of ‘the pleadings, 28 depositions, answers to interrogatories, and admissions on file, together with the affidavits, -3- Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 4 of 32 1 if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 2 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In order to carry its burden of 3 production, the moving party must either produce evidence negating an essential element 4 of the nonmoving party’s claim or defense or show that the nonmoving party does not have 5 enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 6 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “If . . . 7 [the] moving party carries its burden of production, the nonmoving party must produce 8 evidence to support its claim or defense.” Id. at 1103. 9 “If the nonmoving party fails to produce enough evidence to create a genuine issue 10 of material fact, the moving party wins the motion for summary judgment.” Id. There is 11 no issue for trial unless enough evidence favors the non-moving party. Anderson v. Liberty 12 Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely colorable or is not 13 significantly probative, summary judgment may be granted.” Id. at 249-50. At the same 14 time, the evidence of the non-movant is “to be believed, and all justifiable inferences are 15 to be drawn in his favor.” Id. at 255. “[I]n ruling on a motion for summary judgment, the 16 judge must view the evidence presented through the prism of the substantive evidentiary 17 burden.” Id. at 254. Thus, “the trial judge’s summary judgment inquiry as to whether a 18 genuine issue exists will be whether the evidence presented is such that a jury applying that 19 evidentiary standard could reasonably find for either the plaintiff or the defendant.” Id. at 20 255. 21 “[W]hen parties submit cross-motions for summary judgment, [e]ach motion must 22 be considered on its own merits,” but the Court must consider all evidence submitted in 23 support of both cross-motions when separately reviewing the merits of each motion. Fair 24 Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) 25 (quotation marks omitted). For “the party with the burden of persuasion at trial”—usually 26 the plaintiff—to succeed in obtaining summary judgment in its favor, it “must establish 27 beyond controversy every essential element” of each claim on which summary judgment 28 is sought. S. California Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003). -4- Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 5 of 32 1 The party without the burden of persuasion at trial—usually the defendant—is entitled to 2 summary judgment where it establishes that the party with the burden of persuasion will 3 be unable to prove at least one element of its claim in light of the undisputed 4 facts. Celotex Corp., 477 U.S. at 322-23. This distinction reflects that the burden is 5 ultimately on the proponent of each claim to prove it. Id. (“Rule 56(c) mandates the entry 6 of summary judgment, after adequate time for discovery and upon motion, against a party 7 who fails to make a showing sufficient to establish the existence of an element essential to 8 that party’s case, and on which that party will bear the burden of proof at trial. In such a 9 situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure 10 of proof concerning an essential element of the nonmoving party’s case necessarily renders 11 all other facts immaterial.”). 12 II. Analysis 13 Plaintiffs and Defendant each request summary judgment in their favor on all 14 claims. Given the significant overlap in analysis, the Court groups the parties’ arguments 15 together by issue. 16 A. State Law Claims 17 All Plaintiffs except Iglesias bring two Arizona common law claims: (1) “Violation 18 of Common Law Right of Publicity: Misappropriation of Likeness” (Count I) 3 and (2) 19 “False Light Invasion of Property” (Count III). (Doc. 1-3 at 13-15, 18-19.) 20 1. Count I: Right Of Publicity 21 a. Cognizability Under Arizona Law 22 Defendant argues it is entitled to summary judgment on Count I because “Arizona 23 does not grant private, non-military individuals the right to sue in tort for the 24 misappropriation of that person’s name or likeness.” (Doc. 50 at 6.) Defendant notes that 25 “the most recent Revised Arizona Jury Instruction for invasion of privacy explicitly states 26 that there is no jury instruction for violation of the right of publicity for misappropriation 27 28 3 The parties use the term “misappropriation” to describe what Arizona law and the Restatement (Third) of Unfair Competition § 46 term “appropriation.” -5- Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 6 of 32 1 of name or likeness because no such cause of action exists in Arizona.” (Id. at 6-7.) 2 Defendant further argues that the Arizona’s legislature’s enactment of A.R.S. § 12-761, 3 which “give[s] that right only to a specific class of citizen”—a soldier—is proof that the 4 legislature did not intend to confer such a right on other classes of citizens. (Id. at 7.) 5 Plaintiffs, in turn, argue that the Arizona Court of Appeals specifically recognized 6 the cognizability of this theory of liability in In re Estate of Reynolds, 327 P.3d 213 (Ariz. 7 Ct. App. 2014), and that “since the Reynolds decision [many judges of] this Court ha[ve] 8 repeatedly reaffirmed that a right of publicity exists in Arizona.” (Doc. 49 at 6-7.) 9 Plaintiffs also contend that Defendant’s reliance on the Arizona jury instructions is 10 misplaced because a “jury instruction-based argument [cannot] overcome the unmistakable 11 holdings of the District of Arizona and the Arizona Court of Appeals that a right of 12 publicity exists in Arizona” (Doc. 62 at 6-7) and that A.R.S. § 12-761 actually supports 13 their position because “the fact that Arizona’s legislature enacted a statute to specifically 14 protect soldiers is strong evidence that Arizona chose not to disturb the well-settled 15 protections afforded under its common law to right of publicity claims” (id. at 6 n.3). 16 In reply, Defendant argues that Reynolds’s “ruminations on publicity were . . . dicta” 17 and that subsequent decisions concerning Reynolds by other judges of this Court were 18 wrongly decided. (Doc. 63 at 2-4.) 19 The Court concludes that Plaintiffs have the better side of this argument. “When 20 interpreting state law, a federal court is bound by the decision of the highest state court.” 21 In re Kirkland, 915 F.2d 1236, 1238 (9th Cir. 1990). “In the absence of such a decision, a 22 federal court must predict how the highest state court would decide the issue using 23 intermediate appellate court decisions, decisions from other jurisdictions, statutes, 24 treatises, and restatements as guidance.” Id. at 1239. “However, in the absence of 25 convincing evidence that the highest court of the state would decide differently, a federal 26 court is obligated to follow the decisions of the state’s intermediate courts.” Id. (internal 27 citations and quotation marks omitted). 28 In Reynolds, the disputed issue was whether the estate of a decedent could assert a -6- Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 7 of 32 1 “right of publicity” claim against one of the decedent’s children for writing an online 2 magazine article that described the decedent’s “daily challenges with independent living.” 3 327 P.3d at 214. After the trial court dismissed the claim, “ruling the estate had ‘no Right 4 of Publicity,’” the estate appealed. Id. Although the Arizona Court of Appeals affirmed, 5 it did so on different grounds than those provided by the trial court. Specifically, in Part A 6 of its opinion, the appellate court expressly held “that an individual has a right of publicity 7 that protects his or her name and/or likeness from appropriation for commercial or trade 8 purposes.” Id. at 214-16. In reaching this conclusion, the court canvassed the law of 9 several other jurisdictions and noted that this theory of liability is recognized under the 10 Restatement (Third) of Unfair Competition, which Arizona generally follows. Id. Next, 11 in Part B of its opinion, the appellate court held that the decedent’s claim did not expire 12 upon her death and instead passed to the estate. Id. at 216-17. Finally, in Part C of its 13 opinion, the appellate court held that the estate’s claim was foreclosed by § 47 of the 14 Restatement, which exempts “expressive works” from liability, because the challenged 15 article was “on the order of an unauthorized biography” as opposed to “for purposes of 16 trade.” Id. at 217-18. In a paragraph entitled “Conclusion” at the very end of the opinion, 17 the appellate court summarized its holding as follows: “We hold that Arizona recognizes a 18 right of publicity. . . . It is not limited to celebrities and it need not be exploited during life 19 to be asserted in death.” Id. at 218. 20 As this summary makes clear, the Reynolds court’s recognition of the “right of 21 publicity” as a cognizable theory of tort liability under Arizona law cannot be disregarded 22 as dicta. The court’s statements on this issue provided one of the grounds for the court’s 23 ultimate decision and the court made clear that it intended for those statements to have 24 binding, prospective effect. Under Arizona law, this means those statements weren’t dicta. 25 See, e.g., Phelps Dodge Corp. v. Ariz. Dep’t of Water Resources, 118 P.3d 1110, 1116 26 (Ariz. Ct. App. 2005) (where an opinion’s “language indicates an express declaration that 27 the court intended its finding not merely as an expostulation . . . but as a rule to guide 28 [future conduct] . . . [it] should be followed absent a cogent reason for departing from it”); -7- Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 8 of 32 1 Pioneer Annuity Life Ins. Co. v. Rich, 880 P.2d 682, 685 (Ariz. Ct. App. 1994) (“When 2 . . . a court relie[s] on both grounds discussed in the opinion . . . , neither holding is 3 dictum.”) (citation and internal quotation marks omitted); State v. Fahringer, 666 P.2d 514, 4 515 (Ariz. Ct. App. 1983) (“An expression which might otherwise be regarded as dictum 5 becomes an authoritative statement when the court expressly declares it to be a guide for 6 future conduct.”). Many other judges of this Court have reached the same conclusion. See, 7 e.g., Geiger v. Creative Impact Inc., 2020 WL 3545560, *7 n.6 (D. Ariz. 2020) 8 (“[T]he [Reynolds] court’s determination that there is a cause of action for appropriation is 9 not obiter dictum as Defendant argues.”); Skinner v. Tuscan Inc., 2020 WL 5946898, *7 10 (D. Ariz. 2020) (same); Pepaj v. Paris Ultra Club LLC, 2021 WL 632623, *7 (D. Ariz. 11 2021) (same). 12 Finally, although further analysis is unnecessary in light of the Court’s obligation to 13 follow Reynolds,4 there are three additional reasons why Plaintiffs’ right of publicity claims 14 should be deemed cognizable under Arizona law. 15 First, “even if the claim had not been recognized in Arizona, Arizona courts apply 16 the Restatement so long as there is no law to the contrary.” Geiger, 2020 WL 3545560 at 17 *7 (citing Ft. Lowell-NSS Ltd. P’ship v. Kelly, 800 P.2d 962, 968 (Ariz. 1990)). The right 18 of publicity is clearly recognized in § 46 of the Restatement (Third) of Unfair Competition, 19 so even without the benefit of Reynolds, the right of publicity would be a common-law 20 cause of action in Arizona, sans law to the contrary. 21 Second, “[a]bsent a clear manifestation of legislative intent to displace a common- 22 law cause of action,” the Arizona Supreme Court “interpret[s] statutes with every 23 intendment in favor of consistency with the common law.” Orca Commc’ns Unlimited, 24 LLC v. Noder, 337 P.3d 545, 547 (Ariz. 2014). Defendant contends that A.R.S. § 12-761, 25 which pertains to a soldier’s right of publicity, demonstrates that the right of publicity in 26 27 4 During oral argument, Defendant’s counsel stated that the Arizona Court of Appeals is currently considering, in a different case, whether right of publicity claims are cognizable 28 outside the military context. If the court in that case issues a published decision that is inconsistent with Reynolds, Defendant may file a motion for reconsideration on that basis. -8- Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 9 of 32 1 Arizona is “a military-only right.” (Doc. 50 at 8.) But far from containing “a clear 2 manifestation of legislative intent to displace a common-law cause of action,” Noder, 337 3 P.3d at 547, the statute in question expressly provides that “[t]he rights and remedies 4 provided in this section supplement any other rights and remedies provided by law, 5 including the common law right of privacy.” A.R.S. § 12-761(E). As such, it cannot be 6 argued that A.R.S. § 12-761 interferes with the common-law right of privacy, which 7 “Arizona long has recognized,” or with the common-law right of publicity, which protects 8 an individual’s “name and/or likeness from appropriation for commercial or trade 9 purposes.” Reynolds, 327 P.3d at 215-216. 10 Third, the Arizona Supreme Court does not approve jury instructions. State v. 11 Logan, 30 P.3d 631, 633 (Ariz. 2001). Thus, even assuming that jury instructions could 12 ever be useful to a federal court when interpreting state law, they cannot trump a holding 13 of the Arizona Court of Appeals. 14 b. Statute Of Limitations 15 Defendant also seeks summary judgment on the right of publicity claims in Count I 16 (except for Longoria’s) because such claims are akin to claims for invasion of privacy and 17 are thus subject to A.R.S. § 12-541’s one-year statute of limitations. (Doc. 50 at 21-22.) 18 Plaintiffs respond that (1) Defendant hasn’t established that a one-year limitations period 19 should apply to right of publicity claims, and alternatively (2) the limitations period is 20 subject to tolling “pursuant to the continuous tort doctrine.” (Doc. 62 at 17-18.) 21 Defendant is not entitled to summary judgment on the claims in Count I based on 22 the expiration of the statute of limitations. It is true that, in Reynolds, the Arizona Court 23 of Appeals observed that “[v]iolation of the right of publicity . . . originally was one of the 24 four varieties of invasion of privacy.” 327 P.3d at 214-15. However, the court then went 25 on to note that “[t]he ‘right of publicity’ at issue here is defined by the [Restatement (Third) 26 of Unfair Competition § 46] as the right to the ‘commercial value of a person’s identity.’” 27 Id. at 215. “Under this provision, ‘[o]ne who appropriates the commercial value of a 28 person’s identity by using without consent the person’s name, likeness, or other indicia of -9- Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 10 of 32 1 identity for purposes of trade is subject to liability’ for resulting damages.” Id. The court 2 saw “no reason to depart from the Restatement Third in this matter” and therefore held 3 “that an individual has a right of publicity that protects his or her name and/or likeness 4 from appropriation for commercial or trade purposes.” Id. at 216. 5 Given this backdrop, it is appropriate to look to the Restatement to discern the 6 essential nature of a “right of publicity” claim. Comment b to the Restatement (Third) § 7 46 explains that although “[t]he principal historical antecedent of the right of publicity is 8 the right of privacy,” “[c]ourts in a number of jurisdictions eventually came to distinguish 9 claims for injury to personal feelings caused by an unauthorized use of the plaintiff’s 10 identity from claims seeking redress for an appropriation of the commercial value of the 11 identity.” Id. “The latter claim was sometimes denominated a ‘right of publicity’ to 12 distinguish it from the protection available to personal interests under the ‘right of 13 privacy.’” Id. Critically, “[t]he distinction between the publicity and privacy actions . . . 14 relates primarily to the nature of the harm suffered by the plaintiff.” Id. 15 Comment g to the Restatement (Third) § 46 further clarifies this distinction. 16 Comment g explains “[t]he interest in the commercial value of a person’s identity is in the 17 nature of a property right.” Id. See also Reynolds, 327 P.3d at 215 (“Rooted in recognition 18 of the commercial value of an individual’s name or likeness, the right of publicity is in the 19 nature of a property right.”). In contrast, privacy-based claims are more akin to personal 20 injury claims: “[T]he tort of appropriation affords redress of commercial injuries, by 21 contrast to personal injuries of the sort remedied by a claim for, e.g., invasion of privacy 22 by intrusion or publication of private facts.” Reynolds, 327 P.3d at 215. 23 Here, Count I is specifically denominated as a claim based on the “right of 24 publicity.” The best reading of Reynolds and the Restatement (Third) of Unfair 25 Competition § 46 is that this is a property-based tort claim, not a personal injury-based tort 26 claim. And under Arizona law, property-based tort claims are subject to A.R.S. § 12-542’s 27 two-year statute of limitations, not A.R.S. § 12-541’s one-year limitations period. 28 Accordingly, Plaintiffs’ claims in Count I are not time-barred. See also Skinner, 2020 WL - 10 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 11 of 32 1 5946898 at *8 (“[T]he Arizona Court of Appeals determined that the right of publicity is 2 rooted in property, not privacy. . . . [I]f the right of publicity is deemed based in property, 3 in Arizona property torts are not subject to a one-year statute of limitations.”) (citations 4 omitted); Pepaj, 2021 WL 632623 at *8 (same). 5 c. Liability 6 “Under Arizona law, ‘[o]ne who appropriates the commercial value of a person’s 7 identity by using without consent the person’s name, likeness, or other indicia of identity 8 for purposes of trade is subject to liability’ for resulting damages.” Geiger, 2020 WL 9 3545560 at *8 (quoting Reynolds, 327 P.3d at 215). 10 Plaintiffs assert they are entitled to summary judgment on Count I, except as to the 11 extent of their damages, because “[t]here is no material dispute that Defendant used each 12 Plaintiff’s identity in their advertisements; that they sought and obtained a commercial 13 advantage by using these identities by, at minimum, getting Plaintiffs to appear for free in 14 these advertisements; that no Plaintiff has ever been employed by, contracted with or has 15 otherwise given permission or consent to Defendant to use her Image to advertise, promote, 16 market or endorse Great Alaskan; and that each Plaintiff was injured by, at minimum, being 17 denied the fair market revenue she would have received but for Defendant’s 18 misappropriations.” (Doc. 49 at 7.) Notably, Defendant doesn’t contest these assertions— 19 the arguments regarding Count I in Defendant’s motion papers are limited to the issues of 20 cognizability and timeliness. (Doc. 50 at 2, 21-22; Doc. 61 at 7-9.) Moreover, Defendant 21 admits it used Plaintiffs’ photographs in its online advertisements because Plaintiffs are 22 “beautiful women.” (Doc. 50 at 1, 15.) 23 On this record, Plaintiffs are entitled to summary judgment on Count I, except as to 24 the amount of damages. Plaintiffs have submitted undisputed evidence that Defendant 25 appropriated their images, without consent, for purposes of trade. Cf. Skinner, 2020 WL 26 5946898 at *8 (plaintiffs entitled to summary judgment on right of publicity claims where 27 defendant only contested cognizability and timeliness). And “although Defendant states 28 repeatedly that the acquired photos were ‘publicly available,’ it offers no evidence that it - 11 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 12 of 32 1 had consent to publish” them. Id. at *8. As Plaintiffs note, “basically all websites are 2 ‘publicly available,’” but Defendant has brought forth no evidence suggesting that 3 Plaintiff’s images were “publicly available” to Defendant “for licensing and use.” (Doc. 4 64 at 15.) Finally, as for resulting injury, Plaintiffs have established that they were denied 5 the fair market value of their photographs. Gray v. LG&M Holdings LLC, 2020 WL 6 6200165, *4 (D. Ariz. 2020) (granting summary judgment because “[i]t is beyond 7 controversy that the failure to pay any Plaintiff for the use of her Image harmed each 8 Plaintiff”); Pepaj, 2021 WL 632623 at *9 (“The quantity of Plaintiffs’ damages remains a 9 triable issue of fact. Plaintiffs sufficiently allege that their damages are, ‘at minimum,’ the 10 fair market value of their images. But Plaintiffs’ briefing suggests that Plaintiffs may seek 11 additional damages on their right of publicity claims. Accordingly, the Court will grant 12 summary judgment in Plaintiffs’ favor as to liability on the right of publicity, but the 13 measure of each Plaintiff's damages remains a question of fact for trial.”). See generally 14 Restatement (Third) Unfair Competition § 49 (identifying different theories of possible 15 recovery, including recovery based on fair market value of unauthorized use). Indeed, even 16 Defendant’s proposed expert acknowledges that the images in question had a fair market 17 value of more than zero. (Doc. 66 at 62.) 18 2. Count III: False Light Invasion Of Privacy 19 a. Statute of Limitations 20 In Count III of the complaint, Plaintiffs Pinder, Hinton, Canas, and Longoria assert 21 claims for “False Light Invasion of Property.” (Doc. 1-3 at 18-19.) As with Count I, 22 Defendant contends it is entitled to summary judgment on these claims (except for 23 Longoria’s) because they are subject to a one-year statute of limitations under A.R.S. § 12- 24 541. (Doc. 50 at 22-23.) Plaintiffs, in turn, concede that “Defendant is correct that a false 25 light claim has a one-year statute of limitations” but argue that the claims in Count III are 26 not time-barred because they are subject to tolling under the “continuous tort doctrine.” 27 (Doc. 62 at 17.) 28 Plaintiffs’ concession that their claims in Count III are subject to a one-year statute - 12 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 13 of 32 1 of limitations creates a dilemma. On the one hand, the case that both parties cite in support 2 of this conclusion, Watkins v. Arpaio, 367 P.3d 72 (Ariz. Ct. App. 2016), may be 3 distinguishable. There, the Arizona Court of Appeals concluded that because the plaintiff 4 “did not cite any actionable statement [Sheriff] Arpaio made concerning him within a year 5 of filing his lawsuit, the superior court did not err in dismissing the claim for invasion of 6 privacy by false light.” 367 P.3d at 77. But the Watkins court’s determination that the 7 claim was time-barred had nothing to do with the nature of the cause of action. Rather, it 8 was due to the fact that Sheriff Arpaio was a public employee: 9 Watkins’s claim . . . is subject to Arizona statutes that expressly govern the accrual of “all actions” against a public entity or public employee. Under 10 A.R.S. § 12-821, “All actions against any public entity or public employee shall be brought within one year after the cause of action accrues and not 11 afterward.” 12 Id. at 76. Thus, Watkins doesn’t appear to address which statute of limitations should apply 13 when, as here, a false light invasion of privacy claim is brought against a defendant who 14 isn’t a public entity or public employee. 15 On the other hand, the Court takes seriously “the principle of party presentation,” 16 which holds that courts “should not[] sally forth each day looking for wrongs to right” and 17 instead should “wait for cases to come to [them] . . . [and] normally decide only questions 18 presented by the parties.” United States v. Sineneng-Smith, 140 S.Ct. 1575, 1579 (2020) 19 (citations and internal quotation marks omitted). Here, the Court is faced with the task of 20 plowing through hundreds of pages of briefing on three motions to exclude expert opinions 21 and two cross-motions for summary judgment, each of which raises an array of issues and 22 sub-issues. The Court therefore concludes, in its discretion, that the proper course of action 23 is to accept Plaintiffs’ concession that the claims in Count III are subject to a one-year 24 statute of limitations, when the only alternatives would be to address this state-law issue 25 without the benefit of adversary briefing or to further delay the resolution of this case 26 (which has already been pending for more than two and a half years) so that supplemental 27 briefing may be solicited. 28 The only ground that Plaintiffs have articulated for avoiding this time bar is that - 13 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 14 of 32 1 their claims are subject to tolling pursuant to the continuous tort doctrine. (Doc. 62 at 17- 2 18.) But in Watkins, the Arizona Court of Appeals specifically held that “[w]e are unaware 3 of any authority compelling the conclusion that a false-light claim is subject to the 4 ‘continuing wrong’ doctrine.” 367 P.3d at 77. See also Gray, 2020 WL 6200165 at *4-5 5 (“No existing Arizona law has applied the continuous violation doctrine to a false light 6 claim, and it is not the Court's place to be the first.”); Geiger, 2020 WL 3545560 at *6 7 (same). The case cited in Plaintiffs’ brief does not compel a different result, as it did not 8 involve the application of Arizona law. 9 Accordingly, Defendant is entitled to summary judgment on the claims for “False 10 Light Invasion of Property” asserted by Pinder and Hinton in Count III of the complaint, 11 because all of the challenged advertisements pertaining to these two Plaintiffs were 12 published before June 1, 2017 (i.e., more than a year before the complaint was filed). In 13 contrast, Defendant concedes that Longoria’s claim in Count III is not time-barred because 14 the challenged advertisements involving her were published after June 1, 2017. (Doc. 50 15 at 22.) Finally, although Defendant asserts that all of the challenged advertisements 16 pertaining to Canas were published before June 1, 2017, this assertion is inaccurate—Canas 17 identifies an array of different challenged advertisements, some of which were published 18 as early as May 2017 (time-barred) and some of which were published as late as December 19 2017 (not time-barred). (Doc. 1-3 ¶ 42.) Thus, Defendant is not entitled to an across-the- 20 board grant of summary judgment on Canas’s claim in Count III. 21 b. Elements Of False Light Invasion Of Privacy Claim 22 Longoria and Canas move for summary judgment on their timely claims for false 23 light invasion of privacy in Count III, arguing that the undisputed evidence shows they can 24 establish each element of their claims. (Doc. 49 at 20-21.) Defendant opposes this request 25 (Doc. 61 at 12-13) and also affirmatively moves for summary judgment on the grounds 26 that (1) the challenged publications didn’t involve a “major misrepresentation” concerning 27 either Plaintiff’s character, history, activities, or beliefs; (2) Longoria and Canas can’t 28 prove it acted with the requisite “knowing or reckless” mindset; (3) a plaintiff asserting a - 14 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 15 of 32 1 false light claim can only recover emotional distress damages, which Longoria and Canas 2 haven’t claimed here; and (4) Longoria’s and Canas’s asserted status as “celebrities” 3 precludes them from asserting false light claims. (Doc. 50 at 18-21.) 4 Under Arizona law, a claim for false light invasion of privacy appears to have the 5 following elements: 6 One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion 7 of his privacy, if 8 (a) the false light in which the other was placed would be highly offensive to a reasonable person, and 9 (b) the actor had knowledge of or acted in reckless disregard as to 10 the falsity of the publicized matter and the false light in which the other would be placed. 11 12 Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781, 784 (Ariz. 1989) (quoting 13 Restatement (Second) of Torts § 652E); see also id. at 788 (“[W]e are persuaded to 14 recognize the distinct tort of false light invasion of privacy as articulated by Restatement § 15 652E.”). “[T]o qualify as a false light invasion of privacy, the publication must involve ‘a 16 major misrepresentation of [the plaintiff’s] character, history, activities or beliefs,’ not 17 merely minor or unimportant inaccuracies.” Id. at 787 (quoting Restatement (Second) of 18 Torts § 652E cmt. c.). 19 i. Major Misrepresentation, Highly Offensive 20 It is beyond dispute that Defendant’s posting of Longoria’s and Canas’s photos in 21 online advertisements for a strip club constitutes giving publicity. The parties dispute 22 whether these advertisements placed Longoria and Canas in a false light, and if so, whether 23 they involved a “major misrepresentation” of Longoria’s and Canas’s character, history, 24 activities, or beliefs. Defendant argues there can be no false light because the photographs 25 in the advertisements were photographs that Longoria and Canas had previously allowed 26 to published in other contexts and “were not manipulated in any way—other than to add 27 the picture of the woman to an advertising flier.” (Doc. 50 at 20.) But it is exactly this— 28 adding the pictures to the advertising fliers—that may have placed Longoria and Canas in - 15 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 16 of 32 1 a false light. “[W]hen the publication of true information creates a false implication about 2 the individual . . . , the false innuendo created by the highly offensive presentation of a true 3 fact constitutes the injury.” Godbehere, 783 P.2d at 787. 4 In Godbehere, the Arizona Supreme Court identified the Seventh Circuit’s decision 5 in Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985), as providing a “good 6 example of a false light cause of action based on implication.” 783 P.2d at 787 n.2. The 7 court elaborated: 8 In Douglass, the plaintiff posed nude, consenting to the publication of her photographs in Playboy magazine. Her photographer subsequently left the 9 employ of Playboy for Hustler magazine, a publication of much lower standing in the journalistic community. He sold her photographs 10 to Hustler, which published them. The plaintiff sued for the nonconsensual use of the photographs. Plaintiff had no cause of action for defamation, 11 because essentially, there was nothing untrue about the photographs. She posed for them and, as published, they did not misrepresent her. She also 12 had no claim for outrage. She voluntarily posed for the photographs and consented to their publication in Playboy. Publication was not “outrageous,” 13 as it may have been if she were photographed without her knowledge and the photos published without her initial consent. However, the court upheld her 14 recovery for false light invasion of privacy. The jury may have focused on the differences between Playboy and Hustler and concluded that to be 15 published in Hustler, as if she had posed for that publication, falsely placed her in a different light than the Playboy publication. 16 17 Id. 18 If placing nude photos intended for one magazine featuring nude women in a 19 different magazine featuring nude women that has “lower standing in the journalistic 20 community” can constitute false light, the Court has no trouble concluding that placing 21 provocative photos that were not intended for promoting a strip club in promotions for a 22 strip club can likewise constitute false light. A jury could conclude that the implication 23 that Longoria and Canas posed for the ads was “a major misrepresentation” of their 24 activities as models. A jury also could conclude that the implication that Longoria and 25 Canas worked at the club was “a major misrepresentation.” Regardless of whether a 26 woman poses provocatively in other contexts, the implication that she endorses (or perhaps 27 even strips at) a strip club could be found to be “highly offensive to a reasonable person.” 28 If the jury finds that the advertisements convey the impression that Longoria and Canas - 16 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 17 of 32 1 were strippers at Defendant’s club, the jury may find the “highly offensive” element more 2 easily met. Genuine issues of material fact exist as to each of these elements. See, e.g., 3 Geiger, 2020 WL 3545560 at *2 (“[T]here is a triable issue as to whether being associated 4 with Defendant’s strip club would be highly offensive to a reasonable person in each of the 5 Plaintiffs’ positions.”); Skinner, 2020 WL 5946898 at *4 (“The Court agrees with the 6 district judge in [Geiger] that simply because a woman has modeled in risqué clothing (or 7 even previously worked at a strip club) does not mean a reasonable person in a similar 8 position could not be offended by the suggestion that the person is an exotic dancer at the 9 defendant’s strip club. . . . Whether the use of Plaintiffs’ images in association with Ten’s 10 is highly offensive is a genuine issue precluding summary judgment.”); Pepaj, 2021 WL 11 632623 at *6 (denying defendant’s motion for summary judgment in similar action because 12 it “conflate[d] consent to take a photograph for a discrete purpose with consent that the 13 image be used in connection with an unrelated business”). 14 ii. Actual Malice 15 The next element is whether Defendant had “knowledge of or acted in reckless 16 disregard as to the falsity of the publicized matter and the false light in which the other 17 would be placed.” Godbehere, 783 P.2d at 784. This appears to make “actual malice”5 an 18 element of any false light claim under Arizona law. See, e.g., Rogers v. Mroz, 479 P.3d 19 410, 426 (Ariz. Ct. App. 2020) (“A false light claim requires actual malice.”); Desert Palm 20 Surgical Grp., P.L.C. v. Petta, 343 P.3d 438, 450 (Ariz. Ct. App. 2015) (“To establish a 21 claim for false light invasion of privacy, a plaintiff must show (1) the defendant, with 22 knowledge of falsity or reckless disregard for the truth, gave publicity to information 23 placing the plaintiff in a false light, and (2) the false light in which the plaintiff was placed 24 would be highly offensive to a reasonable person in the plaintiff’s position.”) (emphasis 25 26 5 “Actual malice” is “a term of art and an unfortunate misnomer—it is unrelated to 27 the ordinary meaning of malice as ill will.” Tennenbaum v. Arizona City Sanitary Dist., 2015 WL 7731820, *5 (D. Ariz. 2015). “Actual malice” means “with knowledge that the 28 statement was false or with reckless disregard as to whether or not it was true.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988). - 17 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 18 of 32 1 added).6 2 “[W]here the factual dispute concerns actual malice . . . the appropriate summary 3 judgment question will be whether the evidence in the record could support a reasonable 4 jury finding either that the plaintiff has shown actual malice by clear and convincing 5 evidence or that the plaintiff has not.” Scottsdale Pub., Inc. v. Superior Court In & For 6 Cty. of Maricopa, 764 P.2d 1131, 1142 (Ariz. Ct. App. 1988) (quoting Anderson v. Liberty 7 Lobby, Inc., 477 U.S. 242, 255–56 (1986)). “The proof of ‘actual malice” calls a 8 defendant’s state of mind into question, and does not readily lend itself to summary 9 disposition.” Hutchinson v. Proxmire, 443 U.S. 111, 120 (1979) (citation omitted). 10 Plaintiffs contend that “[a]s to knowledge of falsity, there is no question Defendant 11 knew no Plaintiff worked as a stripper at [Defendant’s club] or was hired to promote or 12 sponsor same . . . .” (Doc. 49 at 20.) This is true. However, Defendant never published a 13 statement affirmatively declaring that Longoria and Canas were strippers at (or were 14 6 Although Rogers and Petta suggest that “actual malice” is always required in a false 15 light action under Arizona law, the underpinnings of this approach are somewhat murky. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the U.S. Supreme Court 16 formulated the “actual malice” standard as a constitutional restriction on the States’ power to award tort damages in one specific type of case—defamation actions brought by public 17 officials against critics of their official conduct. Later, the Supreme Court held that this constitutional restriction was also required in the somewhat related context of state-law tort 18 actions brought by public figures for intentional infliction of emotional distress. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). This backdrop is informative because 19 Godbehere, which was decided only one year after Falwell, also involved a claim brought by public officials concerning reports that criticized their official acts. 783 P.2d at 783. It 20 is therefore understandable why the Godbehere court stated, when identifying the elements of a claim for false light invasion of privacy, that the plaintiff must prove the defendant 21 “had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.” Id. at 784. Indeed, in a footnote, 22 the court explained that it was including this requirement because “in this case, where we deal with publications concerning public officers performing public duties, the first 23 amendment controls” and clarified that it took “no position” on what liability standard would govern a claim by “a non-public figure” for “false light invasion of privacy” 24 “[b]ecause this case does not present the issue.” Id. at 789 n.6. Nevertheless, Rogers and Petta state that the elements identified in Godbehere apply to all claims for false light 25 invasion of privacy, seemingly irrespective of the plaintiff’s status as a public (or non- public) official or figure. Respectful of its role as a federal court applying state law, the 26 Court will follow that approach here. That approach also makes it unnecessary to decide whether Longoria and Canas are, in fact, public figures—an undertaking the Arizona 27 Supreme Court has described as “much like trying to nail a jellyfish to the wall.” Dombey v. Phoenix Newspapers, Inc., 724 P.2d 562, 569 (Ariz. 1986). 28 - 18 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 19 of 32 1 otherwise hired to promote) its club. The advertisement plausibly implied as much, but 2 where the false light derives from an implication, actual malice requires that the defendant 3 knew or recklessly disregarded the existence of the implication. In other words, it isn’t 4 enough that Defendant knew that Longoria and Canas didn’t work for its club and hadn’t 5 endorsed it—Defendant must have known (or to have considered and then recklessly 6 disregarded the possibility) that the advertisements could convey that message. Solano v. 7 Playgirl, Inc., 292 F.3d 1078, 1085-86 (9th Cir. 2002). 8 Whether Defendant “entertained serious doubts” that the advertisements conveyed 9 such a message “may be proved by inference, as it would be rare for a defendant to admit 10 such doubts.” Id. Plaintiffs have produced the advertisements themselves (Doc. 49-2)— 11 from which a fact-finder can draw his or her own inferences—as well as a survey and 12 expert report indicating that some viewers of the advertisements had false impressions of 13 Longoria, Canas, and the other Plaintiffs after viewing the ads (Doc. 49-9). The Court is 14 satisfied that “the evidence in the record could support a reasonable jury finding . . . that 15 the plaintiff has shown actual malice by clear and convincing evidence.” Scottsdale Pub, 16 764 P.2d at 1142. Thus, neither side is entitled to summary judgment—the question of 17 actual malice presents a jury issue. See, e.g., Geiger, 2020 WL 3545560 at *4 (“[T]here is 18 a dispute of material fact as to whether Defendant posted the flyers with Plaintiffs’ images 19 with knowledge or reckless disregard for the truth (i.e., actual malice).”); Skinner, 2020 20 WL 5946898 at *5 (“Whether this [advertisement] was in reckless disregard to the truth 21 depends upon a fact finder’s determination of the postings’ degree of innuendo (whether 22 they placed Plaintiffs in a false light) and offensiveness (whether the false light was highly 23 offensive to a similarly situated person). These are material factual issues.”). 24 iii. Damages 25 Defendant argues that “the tort of false light does not provide redress for injury to a 26 plaintiff’s reputation; it only provides for . . . emotional damages . . . .” (Doc. 50 at 21.) 27 Plaintiffs somewhat surprisingly fail to address this issue in their response. (Doc. 62 at 14- 28 16.) - 19 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 20 of 32 1 Defendant’s argument rests on a false premise. Although the Arizona Supreme 2 Court in Godbehere noted that “the gravamen of a privacy action . . . is the injury to the 3 feelings of the plaintiff, the mental anguish and distress caused by the publication” and 4 observed that “[p]rivacy . . . does not protect reputation but protects mental and emotional 5 interests,” 783 P.2d at 787, the Court does not interpret those statements as foreclosing a 6 plaintiff from seeking damages for reputational harm in an action for false light invasion 7 of privacy. Indeed, the Godbehere court went on to state that “a plaintiff may recover even 8 in the absence of reputational damage.” Id. This formulation suggests that a plaintiff 9 asserting a false light invasion of privacy claim may seek both reputational and emotional 10 distress damages. Comment a of § 652H of the Restatement (Second) of Torts, which sets 11 forth the damages available in a false light invasion of privacy action, supports this 12 interpretation. It provides that “[o]ne who is publicly placed in a false light, under § 652E, 13 may recover damages for the harm to his reputation from the position in which he is 14 placed.” Thus, even though Longoria and Canas have not put forth any evidence 15 suggesting they suffered mental distress—their declarations are silent on this point— 16 Defendant is not entitled to summary judgment based on the absence of provable damages. 17 Cf. Geiger, 2020 WL 3545560 at *6 (denying defendant’s motion for summary judgment, 18 premised on the argument that plaintiffs couldn’t prove any emotional injury, because 19 “once a plaintiff establishes a false light claim, it is in the province of the finder of fact to 20 consider any actual damage to a plaintiff’s reputation and/or any emotional damage or 21 damage to sensibility”) (quotation marks and brackets omitted); Pepaj, 201 WL 632623 at 22 *7 (same). 23 iv. Public Official 24 Defendant’s final summary judgment argument is that, because “the Arizona 25 Supreme Court [has] specifically held that the right of privacy does not exist where the 26 plaintiff has become a public character” yet “Plaintiffs all ‘claim’ to be celebrities,” these 27 assertions preclude the imposition of liability. (Doc. 50 at 21 [cleaned up].) Once again, 28 Plaintiffs surprisingly fail to address this argument in their response. - 20 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 21 of 32 1 Defendant’s argument is unavailing. In Godbehere, the Arizona Supreme Court 2 held that the plaintiffs’ false light invasion of privacy claims were not actionable because 3 the plaintiffs were all law enforcement officials, the challenged reports concerned their 4 official activities, and “[i]t is difficult to conceive of an area of greater public interest than 5 law enforcement. Certainly the public has a legitimate interest in the manner in which law 6 enforcement officers perform their duties.” 783 P.2d at 789. Thus, the court adopted the 7 following legal standard: 8 [A] plaintiff cannot sue for false light invasion of privacy if he or she is a public official and the publication relates to performance of his or her public 9 life or duties. We do not go so far as to say, however, that a public official has no privacy rights at all and may never bring an action for invasion of 10 privacy. Certainly, if the publication presents the public official’s private life in a false light, he or she can sue under the false light tort, although actual 11 malice must be shown. 12 Id. The court also clarified that “the public official designation applies at the very least to 13 those among the hierarchy of government employees who have, or appear to the public to 14 have, substantial responsibility for or control over the conduct of governmental affairs.” 15 Id. (citation and quotation marks omitted). 16 Here, there can be no serious argument that Longoria and Canas are “public 17 officials.” They are not government employees and do not have substantial responsibility 18 or control over the conduct of government affairs. Although the record reflects that 19 Longoria and Canas each considers herself to have “earned elite status as a social media 20 celebrity” due to her high number of followers on Instagram (Doc. 49-3 ¶ 3; Doc. 49-7 ¶ 21 3), being “Instagram famous” isn’t tantamount to being a public official. 22 B. Federal Claims 23 Section 43(a) of the Lanham Act provides: 24 Any person who, on or in connection with any goods or services, . . . uses in commerce any word, term, name, symbol, or device, or any combination 25 thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— 26 (A) is likely to cause confusion, or to cause mistake, or to deceive 27 as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or 28 approval of his or her goods, services, or commercial activities by another person, or - 21 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 22 of 32 1 (B) in commercial advertising or promotion, misrepresents the 2 nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial 3 activities, 4 shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 5 6 15 U.S.C. § 1125(a)(1). 7 “Section 1125(a) thus creates two distinct bases of liability: false association, 8 § 1125(a)(1)(A), and false advertising, § 1125(a)(1)(B).” Lexmark Int’l, Inc. v. Static 9 Control Components, Inc., 572 U.S. 118, 122 (2014). 10 Defendant argues that Plaintiffs did not plead or disclose a false advertising claim. 11 (Doc. 50 at 15.) This is bewildering, because the complaint specifically cites 12 § 1125(a)(1)(B) (Doc. 1-3 ¶ 57) and twice refers to Defendant’s conduct as “false 13 advertising” (id. ¶¶ 60, 62). 14 In contrast, the complaint never references § 1125(a)(1)(A) or uses the term “false 15 association.” The complaint’s allegations, however, allude to such a claim: “Defendants 16 used Plaintiffs’ images, likenesses and/or identities as described herein without authority 17 in order to create the perception that the Plaintiffs[] worked at or [were] otherwise affiliated 18 with the Defendant Club, endorsed the Club or the Club’s business activities, and/or 19 consented to or authorized Defendants’ or the Club’s usage of their images in order to 20 advertise, promote, and market the Defendant Club and Defendants’ business activities.” 21 (Id. ¶ 58.) At any rate, both parties assume that Count II incudes a false association claim. 22 (Doc. 49 at 13-20; Doc. 50 at 9-15.) The Court therefore concludes that Count II comprises 23 both a false advertising claim under § 1125(a)(1)(B) and a false association claim under 24 § 1125(a)(1)(A). Each claim is addressed below. 25 … 26 … 27 … 28 … - 22 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 23 of 32 1 1. False Association 2 A Lanham Act claim for false association under § 1125(a)(1)(A) has the following 3 elements: 4 (1) The defendant used a word, term, name, symbol, or device (or any combination thereof) or any false designation of origin, false or misleading 5 description of fact, or false or misleading representation of fact; 6 (2) The usage was in commerce, in connection with goods or services; 7 8 (3) The usage is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another 9 person, or as to the origin, sponsorship, or approval of his or her goods, 10 services, or commercial activities by another person; and 11 (4) The plaintiff believes he or she is or is likely to be damaged as a result of the 12 usage. 13 See 15 U.S.C. § 1125(a)(1)(A). 14 “The first two elements are met by the undisputed fact that Defendant used photos 15 of Plaintiffs in commerce.” Gray, 2020 WL 6200165 at *6. Neither side addresses the 16 fourth element, which is whether Plaintiffs “believe[]” they are “damaged” or “likely to be 17 damaged” as a result of the usage. 15 U.S.C. § 1125(a)(1)(A). Defendant limits its 18 argument for summary judgment to the third element, likelihood of confusion. (Doc. 50 at 19 9-15.) The question is whether Defendant’s usage of Plaintiffs’ photographs in the online 20 advertisements for Defendant’s strip club was likely to confuse viewers of the ads into 21 believing that Plaintiffs were affiliated, connected, or associated with the club or that 22 Plaintiffs sponsored or approved of the club’s goods, services, or commercial activities. 23 The Court’s analysis regarding likelihood of confusion is guided by the eight-factor 24 test set forth in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979): 25 (1) Strength of the mark; 26 (2) Proximity of the goods; 27 (3) Similarity of the marks; 28 (4) Evidence of actual confusion; - 23 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 24 of 32 1 (5) Marketing channels used; 2 (6) Type of goods and the degree of care likely to be exercised by the 3 purchaser; 4 (7) Defendant’s intent in selecting the mark; and 5 (8) Likelihood of expansion of the product lines. 6 See also White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1400 (9th Cir. 1992), as 7 amended (Aug. 19, 1992) (applying Sleekcraft factors to celebrity endorsement action).7 8 a. Strength Of The Mark 9 “In cases involving confusion over endorsement by a celebrity plaintiff, ‘mark’ 10 means the celebrity’s persona.” White, 971 F.2d at 1400. “The ‘strength’ of the mark 11 refers to the level of recognition the celebrity enjoys among members of society.” Id. 12 This factor presents a genuine dispute of material fact. Each Plaintiff enjoys some 13 degree of celebrity, measurable by, for example, the number and prominence of the 14 appearances each Plaintiff has had in magazines, films, advertisements, or other publicly 15 viewable settings, the number of followers each Plaintiff has on social media, and/or the 16 degree to which people recognize her. Plaintiffs have brought forth evidence as to their 17 modeling and other celebrity appearances and social media followings in the form of 18 declarations. (Doc. 49-3, 49-4, 49-5, 49-6, 49-7.) Additionally, Plaintiffs’ expert Martin 19 Buncher indicated in his report that, on average, 15% of the 300 people who responded to 20 a survey he conducted recognized Plaintiffs, with a range of recognition between 13% and 21 24%. (Doc. 49-9 at 19.) It is within the province of the jury to weigh this evidence and 22 determine the strength of each Plaintiff’s mark. See, e.g., Gray, 2020 WL 6200165, at *6 23 (“The jury could conclude that since 16% of respondents recognized Plaintiffs, Plaintiffs 24 are sufficiently recognizable; or it could conclude than since 84% of respondents did not 25 7 “[T]he sine qua non of trademark infringement is consumer confusion, and . . . 26 the Sleekcraft factors are but a nonexhaustive list of factors relevant to determining the likelihood of consumer confusion.” Network Automation, Inc. v. Advanced Sys. Concepts, 27 Inc., 638 F.3d 1137, 1142 (9th Cir. 2011). The Sleekcraft test should be applied “in a flexible manner, keeping in mind that the eight factors it recited are not exhaustive, and 28 that only some of them are relevant to determining whether confusion is likely in the case at hand.” Id. at 1145. - 24 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 25 of 32 1 recognize Plaintiffs, Plaintiffs are too obscure. Or the jury could attribute little weight to 2 any percentages from Mr. Buncher’s survey based on problems with the representativeness 3 of the sample or other problems with the methodology.”). 4 b. Proximity Of The Goods 5 “In cases concerning confusion over celebrity endorsement, the plaintiff’s ‘goods’ 6 concern the reasons for or source of the plaintiff’s fame.” White, 971 F.2d at 1400. For 7 example, in a case in which Vanna White, “the hostess of ‘Wheel of Fortune,’ one of the 8 most popular game shows in television history,” sued an electronics company for using her 9 likeness to advertise video cassette recorders, the Ninth Circuit concluded that “[b]ecause 10 White’s fame is based on her televised performances, her ‘goods’ are closely related to 11 Samsung’s VCRs” and “the ad itself reinforced the relationship by informing its readers 12 that they would be taping the ‘longest-running game show’ on Samsung’s VCRs well into 13 the future.” Id. at 1396, 1400. Obviously, Vanna White was not engaged in the business 14 of making or selling VCRs. But “television” was the thematic link that connected White 15 and VCRs. 16 The source of Plaintiffs’ fame is their beauty and sex appeal, and Defendant’s strip 17 club is a business that emphasizes women’s beauty and sex appeal. Gray, 2020 WL 18 6200165, at *7 (“The modeling and strip-club industries share a common feature: both 19 emphasize appearance and profit off the sexualization of women’s bodies. What makes a 20 successful model makes for an attractive stripper.”). Many of the advertisements reinforce 21 this relationship by making reference (explicitly or via innuendo) to the beauty and sex 22 appeal of the women who work at the club, calling them “Beautiful Bush Babes” (Doc. 49- 23 2 at 2, 13, 17) or including hashtags such as #hotnsexy and #hotdamn (id. at 3). 24 Defendant’s sole argument is that “Plaintiffs have already argued that their fame is 25 patently unrelated” to “providing entertainment at a gentleman’s club.” (Doc. 50 at 13- 26 14.) This argument lacks merit. Plaintiffs argue that they do not endorse or strip at 27 Defendant’s club and that they do not wish to be perceived as doing so. They are not in 28 the stripping business. However, they are in a business that—like Defendant’s— - 25 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 26 of 32 1 capitalizes on beauty and sex appeal. This factor favors Plaintiffs. 2 c. Similarity Of The Marks 3 Defendant used actual photographs of Plaintiffs, so this factor favors Plaintiffs. 4 Fifty-Six Hope Rd. Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059, 1069 (9th Cir. 2015) 5 (similarity of the marks undisputed because defendant “used actual photos”); Downing v. 6 Abercrombie & Fitch, 265 F.3d 994, 1008 (9th Cir. 2001) (similarity of the marks is “clear” 7 where the likeness is “an actual photograph”). 8 d. Evidence Of Actual Confusion 9 “A showing of actual confusion among significant numbers of consumers provides 10 strong support for the likelihood of confusion.” Network Automation, Inc. v. Advanced 11 Sys. Concepts, Inc., 638 F.3d 1137, 1151 (9th Cir. 2011). “Evidence of actual confusion 12 constitutes persuasive proof that future confusion is likely” for the common-sense reason 13 that “[i]f enough people have been actually confused, then a likelihood that people are 14 confused is established.” Id. Actual confusion is a higher standard than likelihood of 15 confusion, and as such, “actual confusion is not necessary to a finding of likelihood of 16 confusion under the Lanham Act.” Id. 17 Buncher’s report demonstrates that the vast majority of survey respondents (84- 18 88%) believed that Plaintiffs “agreed to sponsor, endorse or promote” Defendant’s club, 19 that Plaintiffs “approve[d] of the use of their image” in the advertisements, and that 20 Plaintiffs “were paid to be in the ads.” (Doc. 49-9 at 21-22.) If credited, this is strong 21 evidence of actual confusion as to an “affiliation, connection, or association” between 22 Plaintiffs and Defendant’s club and/or as to Plaintiffs’ “sponsorship” or “approval” of the 23 club and its commercial activities. Although a factfinder can decide how much weight, if 24 any, to give Buncher’s report, Defendant has produced no controverting evidence that 25 suggests an absence of actual confusion. Thus, this factor favors Plaintiffs.8 26 8 In Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233, 258 (2d Cir. 2021), the 27 Second Circuit affirmed a grant of summary judgment in favor of the defendant on a similar Lanham Act false association claim, but Electra is distinguishable because the district court 28 in that case struck the plaintiffs’ survey evidence pertaining to actual confusion. Here, Plaintiffs’ survey evidence has not been stricken. - 26 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 27 of 32 1 e. Marketing Channels Used 2 “Today, it would be the rare commercial retailer that did not advertise online, and 3 the shared use of a ubiquitous marketing channel does not shed much light on the likelihood 4 of consumer confusion.” Network Automation, 638 F.3d at 1151. This factor is therefore 5 inapplicable or neutral. 6 f. Degree Of Consumer Care 7 “Low consumer care increases the likelihood of confusion.” Id. at 1152. “In 8 assessing the likelihood of confusion to the public, the standard used by the courts is the 9 typical buyer”—in this case, a typical patron of strip clubs—“exercising ordinary caution.” 10 Sleekcraft, 599 F.2d at 353. The buyer is expected to be more “discriminating” when he 11 has more “expertise in the field” or when “the goods are expensive.” Id. 12 “In addition to price, the content in question may affect consumer care as well.” 13 Playboy Enterprises, Inc. v. Netscape Commc’ns Corp., 354 F.3d 1020, 1028 (9th Cir. 14 2004). “In Playboy, the relevant consumer was looking for cheap, interchangeable adult- 15 oriented material, which similarly led to [the Ninth Circuit’s] finding that the consumers at 16 issue would exercise a low degree of care.” Network Automation, 638 F.3d at 1152. 17 Here, Defendant initially stated that this factor is “somewhat irrelevant” because its 18 advertisements “are not advertising actual goods or services for which a consumer would 19 need to exercise care.” (Doc. 50 at 15.) This statement seems to concede that strip club 20 patrons exercise little to no care in selecting which strip club to patronize. However, 21 Defendant next asserted that “consumers that visit nightclubs are generally sophisticated 22 consumers who are selective about which nightclubs they choose to visit.” (Id.) At any 23 rate, Defendant provides no evidence to support this assertion. 24 Plaintiffs have provided evidence that patronage of Defendant’s club is inexpensive. 25 For example, Defendant advertises that there is “No Cover”—meaning admission is free— 26 and “$5 Table dances Till 7PM.” (Doc. 49-8 at 3.) Drink specials run as low as $2. (Id.) 27 Nevertheless, whether a seeker of “adult-oriented” entertainment is generally prone to 28 exercise a low or high degree of care in selecting a strip club such as Defendant’s is a fact- - 27 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 28 of 32 1 based determination for the jury. 2 g. Defendant’s Intent In Selecting The Mark 3 Plaintiffs assert that Defendant’s intent to confuse consumers into believing that 4 Plaintiffs worked at Defendant’s strip club or sponsored it is “made obvious by the subject 5 advertisements.” (Doc. 49 at 18.) Defendant disagrees, arguing it “did not choose the 6 Plaintiffs for any reason in particular (like fame or notoriety)” and instead chose the 7 photographs in question merely because they “depicted beautiful women in risqué 8 photoshoots.” (Doc. 50 at 15.) 9 In the advertisements at issue, Defendant prominently featured Plaintiffs’ photos, 10 repeatedly referenced the beauty of the women who work at the club, and included no 11 disclaimer that the beautiful women featured in the photographs were not the beautiful 12 women referenced in the text. “[D]o[ing] nothing to alleviate confusion” and “profit[ing] 13 from confusion” provide “some evidence of an intent to confuse.” Playboy, 354 F.3d at 14 1029. A jury could reasonably conclude that Defendant intended to convey the message 15 that Plaintiffs worked at the club or participated in club events. 16 h. Likelihood Of Expansion Of Product Lines 17 “[T]he eighth factor, ‘likelihood of expansion of the product lines,’ does not appear 18 apposite to a celebrity endorsement case such as this.” White, 971 F.2d at 1401. This 19 factor is inapplicable here. 20 i. Other Factors 21 The Sleekcraft factors are “not exhaustive” and “[o]ther variables may come into 22 play depending on the particular facts presented.” Network Automation, 638 F.3d at 1153. 23 The “appearance of the advertisements” is important and “must be considered as a whole.” 24 Id. at 1154. The jury might take into consideration factors such as the layout of the 25 advertisements and the prominence of the photographs—factors that may differ from one 26 advertisement to another. 27 j. Conclusion As To Likeliness Of Confusion 28 “The Lanham Act’s ‘likelihood of confusion’ standard is predominantly factual in - 28 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 29 of 32 1 nature.” Wendt v. Host Int’l, Inc., 125 F.3d 806, 812 (9th Cir. 1997). No single factor is 2 dispositive. Id. Even where some of factors favor the defendant—which is not the case 3 here—summary judgment “is inappropriate when a jury could reasonably conclude that 4 most of the factors weigh in a plaintiff’s favor.” Id. Conversely, unless the applicable 5 (non-neutral) factors, taken as a whole, conclusively favor the plaintiff to the extent that 6 likelihood of confusion is established “beyond controversy,” S. California Gas, 336 F.3d 7 at 888, this element should not be resolved in a plaintiff’s favor at summary judgment. 8 Although the Sleekcraft factors appear to tip strongly in Plaintiffs’ favor, Plaintiffs 9 have not established this element “beyond controversy.” Id. The primary factor in dispute 10 is the strength of each Plaintiff’s mark. Other areas that are not conclusively resolved in 11 Plaintiffs’ favor are actual confusion, degree of consumer care, and Defendant’s intent in 12 selecting the mark. Furthermore, the jury will need to weigh the factors and make the 13 ultimate determination as to likelihood of confusion. Accordingly, neither party is entitled 14 to summary judgment on Plaintiffs’ Lanham Act claims for false association. 15 2. False Advertising 16 After arguing (incorrectly) that Plaintiffs did not plead or disclose a false advertising 17 claim (Doc. 50 at 15), Defendant devoted several pages of its motion to the argument that 18 the false advertising claim fails on the merits. (id. at 15-18.) Plaintiffs failed to respond 19 to these merits-based arguments in their response brief, incorrectly stating that “[s]ince 20 Defendant has neglected to address Plaintiffs’ false advertising claim in its moving brief, 21 such claim must of course be sustained.” (Doc. 62 at 8.) Plaintiffs then offered a belated 22 response to Defendant’s merits-based arguments in their reply in support of their own 23 motion for summary judgment. (Doc. 64 at 5-7.) This procedurally improper approach 24 deprived Defendant of the opportunity to respond. Nevertheless, the Court will consider 25 the briefing as it stands.9 26 9 27 Although LRCiv 7.2(i) permits the Court to assume consent to the granting of an unopposed motion in most cases, “[a] motion for summary judgment cannot be granted 28 simply because there is no opposition.” Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). - 29 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 30 of 32 1 A Lanham Act claim for false advertising under § 1125(a)(1)(B) has the following 2 elements: 3 (1) The defendant made a false statement either about the plaintiff’s or its own product; 4 (2) The statement was made in commercial advertisement or promotion; 5 6 (3) The statement actually deceived or had the tendency to deceive a substantial segment of its audience; 7 8 (4) The deception is material; 9 (5) The defendant caused its false statement to enter interstate commerce; and 10 (6) The plaintiff has been or is likely to be injured as a result of the false 11 statement, either by direct diversion of sales from itself to the defendant, or 12 by a lessening of goodwill associated with the plaintiff’s product. 13 Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038, 1052 (9th Cir. 2008). 14 Additionally, “to come within the zone of interests in a suit for false advertising 15 under § 1125(a), a plaintiff must allege an injury to a commercial interest in reputation or 16 sales.” Lexmark, 572 U.S. at 131-32. Because the injury must be proximately caused by 17 the defendant’s violation of the statute, the plaintiff “ordinarily must show economic or 18 reputational injury flowing directly from the deception wrought by the defendant’s 19 advertising; and that that occurs when deception of consumers causes them to withhold 20 trade from the plaintiff.” Id. at 133. 21 Plaintiffs cannot satisfy these standards here. Plaintiffs and Defendant do not share 22 the same consumers. Defendant’s consumers are potential patrons of strip clubs. If any of 23 these consumers chose to visit Defendant’s strip club because they were deceived into 24 believing that one or more Plaintiffs endorsed the club and/or worked there, this might have 25 taken business away from another strip club, but not from Plaintiffs. Plaintiffs’ consumers 26 are very different—they are clients who book Plaintiffs for modeling and advertising jobs, 27 and Plaintiffs are “selective” about the jobs they take. (Doc. 49-3 ¶ 7; Doc. 49-4 ¶ 7; Doc. 28 49-5 ¶ 7; Doc. 49-6 ¶ 7; Doc. 49-7 ¶ 7.) A person in Arizona who would like to see - 30 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 31 of 32 1 Plaintiffs in person, in a sexualized setting, for his or her own gratification, would meet 2 with no success upon trying to hire Plaintiffs. 3 Moreover, even assuming that the deception wrought by Defendant’s conduct could 4 have theoretically caused Plaintiffs’ consumers to withhold trade from Plaintiffs—by, for 5 example, declining to book Plaintiffs for certain modeling jobs based on the false belief 6 that Plaintiffs had stripped at and/or endorsed Defendant’s club—Plaintiffs have not 7 proffered any evidence that this actually occurred. Under the Lanham Act, a plaintiff 8 “cannot obtain relief without evidence of injury proximately caused by [the] alleged 9 misrepresentations.” Lexmark, 572 U.S. at 140. See, e.g., Pepaj, 2021 WL 632623 at *11 10 (granting summary judgment to defendants on Lanham Act false advertising claims 11 because “Plaintiffs do not offer any facts suggesting that [the club’s] allegedly false 12 advertising caused consumers to withhold trade from Plaintiffs”). 13 Finally, to the extent Plaintiffs suggest they have “suffered an injury to their 14 commercial interests in sales by not getting paid for Defendant’s use of their image” (Doc. 15 64 at 6), that is not the kind of injury contemplated by a Lanham Act false advertising 16 claim. The injury must be “proximately caused by [the] alleged misrepresentations.” 17 Lexmark, 572 U.S. at 140. Defendant’s failure to pay Plaintiffs was not caused by 18 misrepresentations. 19 C. Collateral Estoppel 20 Defendant argues that “non-mutual defensive collateral estoppel” should apply to 21 Plaintiffs Hinton, Canas, and Pinder. (Doc. 50 at 23-24.) 22 “[T]he party asserting preclusion bears the burden of showing with clarity and 23 certainty what was determined by the prior judgment.” Clark v. Bear Stearns & Co., 966 24 F.2d 1318, 1321 (9th Cir. 1992). “It is not enough that the party introduce the decision of 25 the prior court; rather, the party must introduce a sufficient record of the prior proceeding 26 to enable the trial court to pinpoint the exact issues previously litigated.” Id. 27 Here, clarity is wholly lacking. Cf. Pepaj, 2021 WL 632623 at *11 (rejecting 28 collateral estoppel claim in similar action due to inadequacy of defendant’s evidentiary - 31 - Case 2:18-cv-02334-DWL Document 73 Filed 03/23/21 Page 32 of 32 1 submissions). As one example, the heading of this two-page section names “Plaintiffs 2 Posada, Golden, and Gibson”—none of whom are Plaintiffs in this action. Defendant 3 points to several cases but leaves the Court guessing as to the details. Hinton, Canas, and 4 Pinder are not estopped from succeeding on any claims. 5 D. Conclusion 6 As for Count I (right of publicity), summary judgment is granted in favor of Pinder, 7 Hinton, Canas, and Longoria, but only as to liability. The amount of damages remains a 8 question for the jury. As for Count II (Lanham Act), summary judgment is granted in favor 9 of Defendant on Plaintiffs’ claims for false advertising under 15 U.S.C. § 1125(a)(1)(B) 10 but denied as to Plaintiffs’ claims for false association under 15 U.S.C. § 1125(a)(1)(A). 11 As for Count III (false light invasion of privacy), summary judgment is granted in 12 Defendant’s favor on the claims asserted by Pinder and Hinton but denied as to the claims 13 asserted by Longoria and Canas. 14 Accordingly, IT IS ORDERED that: 15 (1) Defendant’s motion for summary judgment (Doc. 50) is granted in part and 16 denied in part. 17 (2) Plaintiffs’ motion for summary judgment (Doc. 49) is granted in part and 18 denied in part. 19 Dated this 23rd day of March, 2021. 20 21 22 23 24 25 26 27 28 - 32 -