Advertising Law Blog

A judge in New York recently refused to dismiss the complaint filed by a model, Hailey Clauson, and her parents, brought against the retailer Urban Outfitters, claiming the unauthorized use of Clauson's photograph. At issue is an allegedly "salacious" photograph of the underage Clauson sitting on a motorcycle. The photograph is featured on t-shirts that were sold at Urban Outfitters. Urban Outfitters claims that it obtained the t-shirts from its suppliers (and co-defendants). The lawsuit alleges that the photographer who took the photos of Clauson had no right to use them or license them to the t-shirt company.

The court found that the use of Clauson's photograph on the t-shirts could be used "to create false endorsement or false designation of origin, as well as claims for false representation of the characteristics or qualities of plaintiff's modeling services."

From a practical standpoint, the case raises an important issue for anyone selling products received from third-party suppliers or using materials prepared by others. For example, even if a company acquires the right to use a photograph from the photographer, that would not necessarily mean that a person depicted in the photograph has granted the right to use his or her image for a commercial purpose. The copyright in the photograph, which would be owned by the photographer, would not carry with it the right of publicity, which would be owned by a person depicted in the photograph. It is therefore important to determine the exact nature of the rights being granted, and explore whether there are any limitations on those rights, before the works of a third party are used for commercial purposes.