In an attempt to increase traffic at your gentlemen’s club, you plan a “theme night” to attract sports fans after a local professional team’s home game. Plans for drink specials and a 2-for-1 cover charge begin to take shape.
You sit down at your laptop to promote the event on social media, planning an all-out blitz on TikTok, Facebook, Instagram, X, and Snapchat. The finishing touch? You find a photograph of a model wearing the home team’s jersey and insert it with a tag line invitation to “Celebrate the win or drown your sorrows with me after the game!” What could go wrong? A lot.
That model in the jersey has had her image used more than a few times without her permission and so have some of her other model friends. In fact, they have hired an attorney, one at a firm that employs dozens of lawyers and paralegals who spend their days running “reverse image scans” on the internet to find all of the clubs who have used the models’ images and likenesses to promote businesses they have never heard of (and have not been compensated by).
The law firm finds the photos you posted without permission and files a lawsuit against you on behalf of every model you failed to pay when using their pictures.
What do they want? They want to be paid for the use of particular photos, as they claim you did not own them or have the intellectual property rights to use them. Some models have recently testified that they are paid $5,000 just to post a single selfie on social media while wearing a certain brand of clothing or relaxing at a specifically identified resort.
They also want you to pay money for damage to their reputation, claiming in their lawsuits that, although they may have previously posed in swimwear or lingerie or in suggestive contexts, they would never promote a gentlemen’s club. Additionally, they want to be compensated for the unwanted implication that they endorse a “strip club lifestyle” or were actually performing at the club (as your post suggested).
They may also have moral objections to the post, like the model who is an animal rights activist and claims she is offended that her likeness was used to promote an establishment that serves meat. They want injunctive relief to stop you from using their images again.
Regardless of whether there is any merit to these lawsuits, the attorney fees it will take to get to trial can induce a staggering case of sticker shock. Defense lawyers who practice intellectual property law typically command higher hourly rates. The models who file these suits tend to live all over the country, which can mean added travel costs for these lawyers. Adding insult to injury: the models’ lawyers are asking you to pay their attorneys’ fees as well, which can be double or even triple the going rate for defense attorneys. Given that both liability and damages are hotly contested in these cases, they are very expensive to litigate.
These lawsuits, virtually unheard of ten years ago, are becoming a new cottage industry for trial attorneys. So, what can you do to stay out of the crosshairs? As with all claims, the best claim is the one that never happens.
Approach anything you want to post on social media (as well as on your website or in any print advertisement) with a sense of caution. The ease with which you can find photos—and the many places you can find them—might mislead you into thinking they are “fair game” and can be freely used. Not so, say Plaintiffs’ lawyers. Instead, check that false sense of security and seek permission to use another’s image or likeness. Remember, too, that many photographers may claim rights to their own work, and you may need their permission as well. If a photograph was taken in connection with an endorsement, a third party may have paid for that photograph to be taken and claim ownership rights to it that would require permission for use.
Have a good laugh at memes, but do not be fooled by them. Just because someone has turned a photograph into a meme does not mean it’s fair use for your advertising. The picture in the meme belongs to someone and if it’s not you, then do not use it.
Even when a model puts a photograph or image on his or her website or social media, it’s not “out there” for anyone to use.
Be careful who you choose to run your social media sites. If others within your company create advertising, be sure they are mindful about the legalities of using and posting pictures. Be sure to limit the number of people who have passwords to your social media accounts so that someone does not carelessly post something and create exposures for you.
If you hire an outside party to run your social media accounts, make sure you hire someone who is not only savvy about what garners positive social media results, but also understands the legalities of using images of others. If it’s your intent to shift all of the responsibility for creating posts that don’t run afoul of the law to this outside party, make sure you sign a contract that requires them to carry insurance for their work and add you as a named insured on the policy. Contract language requiring them to defend and indemnify you is a sound idea, too.
Take inventory now and act even sooner. If you have used images on social media in the past without the permission of the subjects, owners, or photographers, delete the posts at once. Some models claim entitlement to payment for every day an unauthorized image is posted online.
Consider these rules for any publication you do—websites, fliers, print ads, and more—not just social media.
ICC’s Cyber Liability Coverage provides valuable protection for these claims. Information and training/resources are available for policyholders through our website. Contact your ICC agent for information about accessing these resources. To locate an agent in your area, use our Find an Agent search.
