West Des Moines strip club loses bid to toss models' lawsuit over use of their photos
Did advertising for a West Des Moines strip club create "consumer confusion" by using racy photos of models who didn't work there or grant permission for the use of their images?
A case in which eight professional models make that allegation against the strip club Beach Girls can go to trial, a federal judge has ruled.
The plaintiffs allege that Beach Girls used their professional photos to promote itself on social media from 2012 to 2016. In their lawsuit, they claim that the club violated the federal trademark law known as the Lanham Act. They also allege unjust enrichment and make other legal claims.
Attorneys for the club argued the plaintiffs lacked evidence for several factors of a trademark claim and asked the court to grant the business summary judgment. In a decision filed Feb. 20, Chief Judge Stephanie Rose found the club was entitled to summary judgment on the plaintiffs' claim that the false advertising caused them economic harm, but ruled the rest of the case should be decided by a jury.
Attorneys for both sides declined to comment on the decision. The case is set to go to trial in April.
Judge: Jury can decide whether using photos was 'highly offensive' to the models in them
To prove a claim under the federal Lanham Act, the plaintiffs must show a "likelihood of consumer confusion" based on the unauthorized use of their photos. Reviewing that claim, Rose found a number of factors weighed in the models' favor, including that the women were clearly identifiable in the photos and that evidence shows customers believed the women were dancers at the club.
Rose also set aside the club's claim that a third-party contractor made the decisions to post the women's photos. No matter who put the picture on Facebook, Rose said, it was clearly done to benefit the business, and in any case evidence suggests the contractor in question ― a manager of the club ― communicated with the club owners about posts.
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And while the club's attorneys argued the social media posts were not "highly offensive" in a way that would violate the women's right to privacy, Rose disagreed, writing that "a jury could reasonably find that a strip club posting images of women without their consent is highly offensive."
The one claim on which Rose ruled for the club was the plaintiffs' false advertising allegation. Because they have not demonstrated any reputational harm or loss of work opportunities, that claim must be dismissed, Rose ruled.
Plaintiffs' expert witness surveys men who go to strip clubs, or want to
To prove that the unauthorized photos could confuse viewers, attorneys hired a marketing expert, who surveyed Iowa men who have patronized or are interested in patronizing adult establishments. His report found that a majority of potential Beach Girls customers who viewed the ads believed the women in them either worked for the club or were otherwise affiliated with it.
The club's attorneys asked the court to bar that testimony, arguing that leading questions and errors of methodology made the survey unreliable. Among other issues, they complained that the survey covered all of Iowa and not a shorter radius around West Des Moines.
Rose rejected those arguments, ruling the parties are free to argue to the jury what weight they should give the survey, and noting that more than half of survey respondents who had patronized Beach Girls lived outside the club's proposed radius.
But the judge sided with the defense in rejecting a second proposed expert witness, whom plaintiffs intended to call on the question of damages. The judge ruled the expert, a model and talent agent, failed to adequately explain in his report how he calculated the earning potentials of the eight models.
Lawsuits against other clubs over photos settled, but dancers' wage suit remains
The lawsuit against Beach Girls is one of five filed in 2022 naming nine Iowa adult entertainments. The cases, brought by the same attorneys and in many cases with the same plaintiffs, all alleged unauthorized use of women's''s photos to promote the clubs. All but the Beach Girls lawsuit have since been settled for undisclosed sums.
Beach Girls also is facing another federal lawsuit filed in 2022 accusing the club of violating minimum wage laws by improperly classifying dancers as "independent contractors" and charging them for a cut of their tips rather than paying for their labor.
That case remains pending. In a status report filed with the court in December, the parties said they were entering settlement negotiations.
William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com or 715-573-8166.
This article originally appeared on Des Moines Register: Iowa strip club faces trial in models' photo trademark lawsuit
