I recently noted that a federal district court in New York held that models who were not sufficiently famous to be generally recognized failed to state a claim under the Lanham Act for the unauthorized use of their image in advertising for gentlemen's clubs.  In a more recent case, a federal district court in New Jersey, however, has set the bar lower: "Plaintiffs are likely to have some recognition among the clientele of Defendants' business because they are models and their fame as models are related in some respect with Defendants' business."

In Cozzens v. Davejoe Re, the court granted default judgments to six professional models/actresses on all four of their claims based on the unauthorized use of their photographs on the club's Facebook page.  They asserted claims under the Lanham Act as well as state law right of publicity, false endorsement, and unfair competition claims.  Noting that the right of publicity claim did not require fame, the court said that the unauthorized use of a likeness for "a predominantly commercial purpose" would be sufficient.  The other claims required more, however.  They all required that there be some likelihood of confusion as to the nature of the models' involvement.

The significance of the additional claims is the very real possibility of greater damages being awarded under the Lanham Act, including trebling and attorneys fees on proof that the violation was willful.