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ED July 2016

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52 July 2016 Club Bulletin www.EDpublications.com The plaintiffs have overwhelmingly speculated, with zero basis to do so, that some idiot will think this "pretty face" will be at a particular club, or that the "pretty face" endorses the club. To make such a supposition is to impugn club patrons to a level below imbecile! Often, it is unknown if any graphic artist paid for any of the photographs used by purchasing the photographs through stock photography websites, such as shutterstock.com and/ or gettyimages.com. No actual website has been identified as the source of the photos. Some stock photography websites do not allow for the photograph to be used for "adult entertainment," but that beef would be between the stock photo website and any subscriber, not the model. Since all of the photographs were taken as part of a professional model "shoot," and the custom and practice for any professional "shoot" requires a release of all rights to those photos to the photographer, the "talent" depicted simply have no ownership rights or other rights to assert in connection with the photos, thus lacking standing to bring any action for the "use" of these same photographs, under any theory. We have argued that, based on the lack of any reference in the complaint to any "copyright" holder, plaintiffs, absent proof of copyright ownership, do not have standing to bring this action. Because these "photographers" are not named, we have sought dismissal of the complaints for multiple reasons, including: (a) lack of subject matter jurisdiction as the actions are preempted by the Copyright Act; (b) failure to join an indispensable party, namely, the copyright holder of the photographs; (c) failure to state a cause of action due to a lack of standing and lack of rights in the photographs. Plaintiffs are seeking damages in the millions of dollars. To debunk that, we are in the process of propound discovery to plaintiffs to learn the details of their claim, including each plaintiffs' employment history, earning potential, the extent to which plaintiffs claim their images were used and any agreements for the sale of the subject photographs to photo stock companies. During a recent conversation with defense counsel from other firms in Florida and New York that are handling similar claims, we believe that plaintiffs' counsel is using facial recognition software to locate and identify alleged "misuse" of the subject images. This means that for some model that appeared years ago in some fleeting internet blurb or Facebook post, your club could be on the hook for being the recipient of one of these lawsuits. In spite of this onslaught, there is some light at the end of the tunnel. In one case involving the a club in South Florida, during the oral argument on my Motion to Dismiss, the Judge dismissed, completely, several counts and, stated that "the plaintiffs shall be required to specify in the amended complaint whether the plaintiffs are basing their claims on the 'ownership' of the photographs attached as exhibits to the complaint, or whether they assert 'ownership' of the images within the photographs, and distinguish between 'images' and 'photographs' in the claims asserted. The court indicated it was going to dismiss the Florida Deceptive and Unfair Trade Practices Act, and the unfair competition claims with prejudice, a rare accomplishment for an initial Motion to Dismiss hearing. Also conceded was the defamation claim: "this count has been dismissed with prejudice by plaintiffs, and will not be repled." Apparently, the plaintiffs' counsel were so concerned that there might be an adverse order neutralizing many of their "counts," they dismissed the entire complaint. The bottom line is that every club owner should have some knowledge of where his or her promotional materials are coming from. That being said, while there may or may not be some value to having one's image used to promote a gentlemen's club, no model, Playboy Playmate or otherwise, can assume that modern society will think less of their "pretty face" simply because a lawful business, which everyone knows is protected by the First Amendment, and for which vast resources have been expended to make the club a first- class location, has "damaged" a model with by using her "pretty face" to promote any club. In any event, these cases are being litigated extensively, there are valid defenses to many of the claims, and I would respectfully suggest that they be defended to the greatest extent possible. No one wants to be "taken" by just another "pretty face." Luke Lirot has represented countless clients in the realm of First Amendment litigation, as well as a wide variety of other types of litigation, including Constitutional Law, Civil Rights, Criminal Law, Entertainment Law, Land Use Law and Personal Injury. Lirot is a past president of the First Amendment Lawyers' Association. He can be reached at luke2@lirotlaw. com or by calling (727) 536-2100. we believe that plaintiffs' counsel is using facial recognition software to locate and identify alleged "misuse" of the subject images. This means that for some model that appeared years ago in some fleeting internet blurb or Facebook post, your club could be on the hook for being the recipient of one of these lawsuits. continued from page 50

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