Facts: A model, Ting Ji was paid 1,000 dollars for a modeling session. Ji signed a modeling agency voucher saying that her image could not be used for “packages, point of purchase and displays.†Additionally, she signed a release to the photographer assigning him the right to user her image for any purpose. The photographer later sold the image to Bose who used to image for packaging and promotion of the Bose 3-2-1 Series II DVD Home Entertaining System. The photograph in question that was used was taken from behind so that only the back of Ji’s head and a fraction of her face were visible. The image was placed in the upper right hand corner of the packaging.
Procedure: Ji brought suit against Bose claiming false endorsement under the Lanham Act (section 43(a)), violation of her right to publicity under Florida statutes, and a common law claim for invasion of privacy. Bose transferred to case to Massachusetts federal court and cross-claimed the photographer in the suit. Bose moved for summary judgment and Ji’s false endorsement claim was dismissed, but the case continued on on the matter of the voucher and the photographer release. After a trial by jury, Ji was awarded $10,000 of the $2 million she was seeking, the jury also found that the photographer was liable to Bose for the reward. Bose sought attorney’s fees because the endorsement claim was dismissed, however, this was denied. All parties appealed.
Issue:
1. The measure of the damages under Florida Statutes (Section 540.08).
2. The denial of summary judgment leading to trial.
3. The denial of attorney’s fees.
Held: 1. The court found that the lower court properly determined damages on a reasonable royalty standard, and rejected Ji’s request that damages be awarded on basis of sales. 2. The summary judgment issue was not addressed becayse the defendants failed to preserve the arument in a motion for judgment as a matter of law and thus waived its right to revisit the issue and prevented review on appeal. 3. The district court did not abuse its discretion because Ji’s calims were not unfounded.
Analysis and Dicta: With regards to the damages, the court said that basing the damages on sales and manufacturing numbers would be improper because more units were likely to be produces than actually sold and thus this would not be an accurate way of determining how the image was construed to be endorsing the product. With regards to the motion for summary judgment, the court rejected the defendants contention that the facts were established and the case was ready for a resolution as a matter of law because the question of which document was controlling, the voucher or the release, was still not settled. With regards to the claim for attorney’s fees, the court said that “Ji sufficiently proved similarity of her likeness and similarity of marketing channels in the likelihood of consumer confusion analysis for the false endorsement claim.â€
Future importance: Not sure at this time. The opinion was short and pretty thin.
Procedure: Ji brought suit against Bose claiming false endorsement under the Lanham Act (section 43(a)), violation of her right to publicity under Florida statutes, and a common law claim for invasion of privacy. Bose transferred to case to Massachusetts federal court and cross-claimed the photographer in the suit. Bose moved for summary judgment and Ji’s false endorsement claim was dismissed, but the case continued on on the matter of the voucher and the photographer release. After a trial by jury, Ji was awarded $10,000 of the $2 million she was seeking, the jury also found that the photographer was liable to Bose for the reward. Bose sought attorney’s fees because the endorsement claim was dismissed, however, this was denied. All parties appealed.
Issue:
1. The measure of the damages under Florida Statutes (Section 540.08).
2. The denial of summary judgment leading to trial.
3. The denial of attorney’s fees.
Held: 1. The court found that the lower court properly determined damages on a reasonable royalty standard, and rejected Ji’s request that damages be awarded on basis of sales. 2. The summary judgment issue was not addressed becayse the defendants failed to preserve the arument in a motion for judgment as a matter of law and thus waived its right to revisit the issue and prevented review on appeal. 3. The district court did not abuse its discretion because Ji’s calims were not unfounded.
Analysis and Dicta: With regards to the damages, the court said that basing the damages on sales and manufacturing numbers would be improper because more units were likely to be produces than actually sold and thus this would not be an accurate way of determining how the image was construed to be endorsing the product. With regards to the motion for summary judgment, the court rejected the defendants contention that the facts were established and the case was ready for a resolution as a matter of law because the question of which document was controlling, the voucher or the release, was still not settled. With regards to the claim for attorney’s fees, the court said that “Ji sufficiently proved similarity of her likeness and similarity of marketing channels in the likelihood of consumer confusion analysis for the false endorsement claim.â€
Future importance: Not sure at this time. The opinion was short and pretty thin.