Cook County Record

Friday, September 20, 2019

Federal judge: Strip club's use of images may have jeopardized models' 'brands'

Federal Court

By Dan Churney | Aug 7, 2019


CHICAGO -- A federal judge is allowing a suit by two models to proceed against a downstate Illinois strip club, which alleges the club used the models’ photos to advertise the establishment without permission, saying the two women may enjoy enough fame for their images to be protected as brands.

On July 31, Judge Virginia Kendall, of U.S. District Court for the Northern District of Illinois, ruled in favor of Tiffany Toth-Gray and Emily Scott, in their action against the Lamp Liter Club. Toth-Gray has been a Playboy magazine Playmate and was the publication’s Cyber Girl of the Month for May 2006. Her likeness has also appeared in other magazines and catalogs. She said she has 3.8 million Facebook followers.

Scott said she does DJ work in addition to modeling and has been voted one of the world’s sexiest women by several publications in the U.S., United Kingdom and Australia. She has been in Playboy and in advertising campaigns for Lipton Tea and Wonderbra. Further, Scott has appeared on the television show "Entourage" and a number of reality shows. Her DJ activities have taken her around the globe, and she has 1.3 million Facebook fans.

The Lamp Liter is an adult club, which opened in 1971 at the western edge of Ottawa, a city in La Salle County, about 75 miles southwest of Chicago.

Toth-Gray and Scott said the Lamp Liter used their images in 2016, without permission, on the club’s Facebook page to promote reduced beer prices at the establishment. The images remained on the page at the time the two women filed their case Feb. 22, 2019, according to the suit.

The plaintiffs noted their careers "depend on their good will and reputations," so they try to "control the use and dissemination of their images and are selective about which companies and brands they model for," according to court papers. In bringing their suit, they cited the U.S. Lanham Act, which prohibits such activities as trademark infringement and false advertising.

The Lamp Liter moved to dismiss the Lanham Act count, saying it didn't include Toth-Gray and Scott's names in the advertisement and, furthermore, the two models do not enjoy enough fame to claim their likenesses are safeguarded as brands. The Lamp Liter concluded that no one who saw the ads would have known of Toth-Gray and Scott.

Kendall found otherwise.

“Even though plaintiffs do not allege that they are famous celebrities, they pleaded enough facts to establish a likelihood of consumer confusion. It is entirely plausible that a consumer might see Lamp Liter’s Facebook posts, recognize the plaintiffs from their modeling, television, or DJing work, and incorrectly conclude that plaintiffs endorse Lamp Liter, that they work there, or that they are otherwise affiliated with the club,” Kendall ruled. 

Kendall added: “Plaintiffs are recognizable enough [and thus that their marks are strong enough] for consumers to be confused by Lamp Liter’s use of their images.”

Toth-Gray and Scott also filed counts alleging negligence and violation of the Illinois Right of Publicity Act, but Kendall tossed out those counts on grounds they were filed more than two years after the statute of limitations expired.

The next hearing is Nov. 5.

Toth-Gray and Scott are represented by the Chicago firm of Tanzillo Gallucci and the Law Offices of Nicholas T. Hart, of Albuquerque, as well as by the Chicago and Austin, Texas, offices of Casas Law Firm, which is based in San Diego.

The Lamp Liter is defended by Peoria lawyer Jonathan L.A. Phillips.

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Law Office of Ricardo B Casas U.S. District Court for the Northern District of Illinois Chicago Division

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