motions to dismiss for lack of subject matter, …

IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT IN AND FOR DUVAL COUNTY, FLORIDA

JESSA HINTON, an individual; CIELO JEAN GIBSON, in individual; DESSIE MITCHESON, an individual; CASE NO.: 16-2016-CA-909 and HEATHER RAE YOUNG, an individual, Plaintiffs, vs. MHHS-SINSATIONS, LLC, d/b/a SINSATIONS, a Florida corporation; and MILTON R. HOWARD, an individual, Defendants. /

MOTIONS TO DISMISS FOR LACK OF SUBJECT MATTER, LACK

OF STANDING AND FAILURE TO STATE A CAUSE OF ACTION

AND TO STRIKE CLAIM FOR PUNITIVE DAMAGES COME NOW the Defendants, MHHS-SINSATIONS, LLC, a Florida Limited

Liability Company1 and MILTON R. HOWARD, by and through their undersigned

attorney, and hereby respond to the Plaintiffs’ Complaint and move this Court to dismiss

that Complaint in its entirety or to strike portions of that Complaint for the reasons set

forth herein:

I. INTRODUCTION AND SUMMARY OF ARGUMENTS

While it takes the Plaintiff 90 pages to explain their various causes of action, the

1 The caption of the Complaint misidentifies the limited liability company. The Defendant is properly identified as MHHS-SINSATIONS, LLC. “Sinsations” is not part of the legal name of the limited liability company but is only a fictitious name under which the Defendant does business.

Filing # 41491512 E-Filed 05/13/2016 05:37:05 PM

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facts can be expressed in a sentence or two and the claims really boil down to only one or

two (if they had been competently pled). Plaintiffs allege that the Defendants obtained

photographs of the Plaintiffs and altered them for use in Defendants’ advertising without

permission. While that is an easy claim to explain, the Plaintiffs fail to properly plead a

claim for damages based on those facts.

The Plaintiffs are not claiming that Defendants took photographs surreptitiously,

without their knowledge or permission.2 Instead, each of the photographs at issue appears

to have been taken by a professional photographer with the Plaintiffs’ permission. The

wrongful act complained of is not the existence of the photographs, but their subsequent

use without permission. See, generally, Complaint, Ex. A through D.

It is obvious that Plaintiffs’ claims all center on the use or misuse of photographs.

This presents two insurmountable problems for the Plaintiffs. The first is one of subject

matter jurisdiction. Claims pertaining to ownership and use of photographs are all

dependent upon copyright law. This Court does not have jurisdiction to entertain

copyright claims or any rights associated with copyright. Only the Federal Courts have

2 Plaintiffs’ Complaint does not identify who took the photographs. However, it is evident from an examination of the photographs attached to the Complaint that the images were staged and undoubtedly taken by a professional photographer. There is nothing about the photographs which suggests that they were taken without the Plaintiffs’ knowledge or consent. These circumstances are entirely different from those in which an individual’s picture is taken without their knowledge. See, e.g., en.wikipedia.org/wiki/ Erin_Andrews#Stalking_incident (last accessed May 12, 2016) (Describing an incident in which nude photos of ESPN’s Erin Andrews taken without her knowledge and posted to the Internet in violation of her privacy rights).

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jurisdiction over such claims pursuant to 28 U.S.C.A. §1338(a) and the Supremacy

Clause.

The second difficulty for the Plaintiffs is that they do not own the copyright of a

photograph of their image merely because they appear in the photograph. That copyright

is owned by the photographer and not be the subject of the photograph. The Plaintiffs do

not allege that they own the copyright to the photographs.3 Neither do they allege

anywhere else in their Complaint that they own any other right in the subject photographs

under the common law or otherwise. In a word, the Plaintiffs lack standing to bring any

of the claims asserted. The real party in interest is the photographer and he has not been

joined to this action; that individual or entity is an indispensable party.

Defendants, therefore, raise multiple objections to the Complaint based on

fundamental defects in jurisdiction and standing as well as founded on ordinary principles

of pleading. Those objections can be summarized as follows:

1. The subject matter of this action is preempted under the Copyright Act and

this Court may not hear any of those associated claims.

2. The Plaintiffs fail to plead that they have any ownership right in the

photographs allegedly misappropriated by the Defendants; the Plaintiffs therefore lack

standing to bring any of the claims.

3 The Plaintiffs could have purchased or otherwise obtained an assignment of the copyright held by the photographer. However, they make no such allegation in their Complaint.

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3. The Plaintiffs have failed to join an indispensable party to this action; to-

wit: the photographer who owns the copyright.

4. Plaintiffs cause of action for defamation must be dismissed for failure of a

statutory condition precedent: Plaintiffs did not allege compliance with the notice

provisions of §770.01, Fla.Stat.

5. Plaintiffs cause of action for civil theft must be dismissed for failure of a

statutory condition precedent: Plaintiffs did not give a pre-suit notice in compliance with

§772.11, Fla.Stat.

6. Plaintiff does not state a cause of action for any of its counts: (a) violation

of §540.08, Fla.Stat.; (b) invasion of privacy; (c) civil theft; (d) unlawful conversion; (e)

violation of Chap. 501, (FDUPTA); (f) unfair trade competition; (g) defamation; (h)

unjust enrichment; or (i) fraudulent misrepresentation. In each case, Plaintiffs fail to

plead one or more of the necessary elements of the cause of action. Those failures are

explored at length below.

7. The claims against Milton R. Howard are subject to dismissal in their

entirety for two reasons:

A. The limited references to Mr. Howard in the Complaint show that he is

joined to the suit only because he is a principal of the limited liability company. See,

Complaint at 5, ¶23. The corporate entity acts as a shield against liability in this instance.

B. The Complaint does not allege that Mr. Howard took any action or

refrained from any action related to the Plaintiffs. Literally, the only factual allegation

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concerning Mr. Howard is that he is a principal of the Defendant limited liability

company:

Based on publicly available records, and further upon information and belief, Defendant Howard is the principal of MHHS-Sinsations, LLC, and in that capacity maintains control over Sinsations, including all advertising relating thereto.

See, Complaint at 5, ¶23.

8. The Complaint is due to be dismissed because it is riddled with allegations

that the Plaintiffs are entitled to an award of punitive damages. The inclusion of claims

for punitive damages is in violation of §768.72, Fla.Stat. as the claim for such damages

was asserted without Court permission and prior to an amendment with leave of Court.

II. LACK OF SUBJECT MATTER JURISDICTION UNDER THE COPYRIGHT ACT. The Plaintiffs do not claim that Defendants violated their copyright to certain

photographs. Nevertheless, that claim lies at the heart of this litigation regardless of how

Plaintiffs frame their causes of action. All of Plaintiffs’ claims revolve around the

ownership and use of certain photographic images and those issues are necessarily

resolved under copyright law.

All of Plaintiffs’ Counts are grounded upon the alleged misuse of existing

photographs by the Defendants. The basic claim is alleged in paragraph 38 of the

Complaint (at page 8):

As set forth below, each Plaintiff’s image, likeness and/or identity has been misappropriated and intentionally altered by or at the direction of the Defendants.

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Each of the individual counts then incorporates a similar allegation that Defendants made

use of an existing photograph for their own purposes:

Hinton’s image, likeness and/or identify are depicted in at least one photograph, enclosed as Exhibit “A” to the Complaint, which has been used by Defendants on multiple occasions in order to create the false perception that Hinton has consented or agreed to promote, advertise, market and/or endorse Sinsations to benefit Defendants’ commercial interests…

Complaint at 10, ¶48. Given Plaintiffs’ particular allegations, the right which they claim

was invaded is wholly tied to the photographs attached as Exhibits to the Complaint and

not to any independent image or likeness. Or looked at from a slightly different

perspective, Defendants made use only of the particular photographs in question rather

than any independent right or image claimed to be owned by the Plaintiffs.

There other aspects of Plaintiffs’ Complaint which bolster the conclusion that

their claims are tied exclusively to the photographs and not to any independent right of

publicity. The Plaintiffs allege that they have appeared in various publications and in

advertising campaigns, but they do not allege that they are celebrities or otherwise

recognizable to the general public. The images in question do not identify the Plaintiffs

by name and the Plaintiffs do not allege that any of Defendants’ patrons actually

recognized them or knew who they were. As far as the Defendants’ customers are

concerned, the Plaintiffs were just anonymous women with an above-average appearance.

The face of Plaintiffs’ Complaint shows that the claims are derived from and

entirely dependent upon the particular photographs allegedly coopted by the Defendants.

There is no right of publicity claimed which is separate and apart from those

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photographs. Compare, Laws v. Sony Music Entm’t, Inc., 294 F. Supp. 2d 1160, 1163

(C.D. Cal. 2003), aff’d, 448 F.3d 1134 (9th Cir. 2006) (State law right of publicity

claims, based on use of plaintiff’s voice through sampling of copyright-protected sound

recording, were preempted by Copyright Act; claim was essentially one for use of

plaintiff’s copyrightable performance, rather than use of her identity.)

A photograph is within the definition of the subject matter of copyright,

specifically, “pictorial, graphic, and sculptural works.” 17 U.S.C. §102(a)(5). Indeed,

photographs are specifically included as part of the statutory definition of a “pictorial

work” See, 17 U.S.C.A. §101 (“‘Pictorial, graphic, and sculptural works’ include…

photographs, prints and art reproductions…”). See, also, Reece v. Island Treasures Art

Gallery, Inc., 468 F. Supp. 2d 1197, 1202 (D. Haw. 2006), quoting Los Angeles News

Serv. v. Tullo, 973 F.2d 791, 794 (9th Cir. 1992) (“Almost any photograph ‘may claim

the necessary originality to support a copyright merely by virtue of the photographer’s

personal choice of subject matter, angle of photograph, lighting, and determination of the

precise time when the photograph is to be taken.’”); Maloney v. T3Media, Inc., 94 F.

Supp. 3d 1128, 1136 (C.D. Cal. 2015) (“The images to which Plaintiffs refer are

photographs, and photographs that meet the Act’s originality requirement fall within the

subject matter of copyright.”).

The fact that Plaintiffs have not claimed that their copyrights were invaded – or

that they even have a copyright interest in the subject photographs – does not allow them

to escape the reach of Federal law. That, is Plaintiff cannot avoid the application of the

copyright laws by carefully pleading around them. See, e.g., EMSA Ltd. P’ship v.

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Lincoln, 691 So. 2d 547, 549-50 (Fla. 4th DCA 1997) (“Although appellant did not allege

that its ownership arose under section 201(b), the allegations in its claim of ownership fit

within that section. Because EMSA’s declaratory relief count essentially seeks a

determination of ownership in the case of a “work for hire,” that count “arises under” the

federal copyright laws, giving the federal courts exclusive jurisdiction.”); Pincus v.

Carlisle, 585 So. 2d 1172, 1172 (Fla. 4th DCA 1991) (“Since the fundamental nature of

the plaintiffs’ claim… involves rights equivalent to those protected by federal patent and

copyright law, we conclude that Count I… is within the exclusive jurisdiction of the

federal district courts.”).

All claims arising from fixed works of authorship come with the scope of the

copyright law, regardless of the claimant’s choice of forum or reliance on alternate legal

theories. Pursuant to 17 U.S.C. §301(a):

[A]ll legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title.

“The intention of Section 301 is to preempt and abolish any rights under the common law

or state statutes, that are equivalent to copyright and that extend to works within the

Federal Copyright Law.” H.R.Rep. No. 1476, 94th Cong., 2d Sess. 130, reprinted in 1976

U.S.C.C.A.N. 5659, 5746.; See, also, Spear Mktg., Inc. v. BancorpSouth Bank, 791 F.3d

586, 597 (5th Cir. 2015) (“]S]tate law claims based on ideas fixed in tangible media are

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preempted by §301(a).”).4

The Eleventh Circuit has adopted a test to determine whether a particular state

law claim falls within the scope of the Copyright Act and is thus preempted:

Section 301 in effect establishes a two-pronged test to be applied in preemption cases. We must decide whether the rights at issue fall within the “subject matter of copyright” set forth in sections 102 and 103 and whether the rights at issue are “equivalent to” the exclusive rights of section 106. Harper & Row, Publishers v. Nation Enters., 501 F.Supp. 848, 850 (S.D.N.Y.1980).

Crow v. Wainwright, 720 F.2d 1224, 1225-26 (11th Cir. 1983).

Defendants have already shown that the photographs in question are original

works reduced to a tangible medium and long-held to be within the copyright laws. As

for the various state law claims asserted by Plaintiffs based on the alleged misuse of those

photographs, it is apparent that all of them are “equivalent to’ actions taken to protect or

4 The rights protected by Federal copyright law are set forth in 17 U.S.C.A. §106. The rights Plaintiffs are attempting to assert in this litigation are subsumed in these Federal rights, including the exclusive right to copy, distribute and publish the images reflected in the subject photographs:

§ 106. Exclusive rights in copyrighted works Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; … (3) … to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; … (5) … to display the copyrighted work publicly…

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enforce the right of ownership of those images. That is, the state law claims are simply

variants of the protections and remedies afforded by the Copyright Act.

The courts are extremely distrustful of copyright claims masquerading as run-of-

the-mill state law claims. In each such case, the courts will ignore the form of the state

law claim and instead look at the heart of the claim to determine whether it is

“equivalent” to a claim properly brought under the Copyright Act. The case of Daboub v.

Gibbons, 42 F.3d 285 (5th Cir. 1995) is both amusing and illustrative of this principle. In

that case, members of the rock and roll band the Nightcaps, claimed that members of ZZ

Top stole the song Thunderbird from them. The Nightcaps brought a host of state law

claims, all of which were held to be preempted by the Copyright Act:

The Nightcaps’ state law claims include conversion, misappropriation, plagiarism, a violation of the Texas Free Enterprise and Antitrust Act of 1983, disparagement, and defamation. The core of each of these state law theories of recovery in this case, without detailing the specific elements comprising each claim, is the same: the wrongful copying, distribution, and performance of the lyrics of Thunderbird. The similitude of tunes with respect to the state and copyright causes of action is a most harmonious one. The Nightcaps have failed to allege or produce evidence of “any element, such as an invasion of personal rights or a breach of fiduciary duty, which render [their claims] different in kind from copyright infringement.” P.I.T.S. Films v. Laconis, 588 F.Supp. 1383 (E.D.Mich. 1984). As another court stated:

“The elements in plaintiff’s [state law action] involve elements that would not establish qualitatively different conduct by the defendants than the elements for an action under the Copyright Act. Thus, there is equivalence between the state and federal rights.”

Quincy Cablesystems Inc. v. Sully’s Bar, Inc., 650 F.Supp. 838, 850 (D.Mass. 1986). Finding no disharmony between the elements of the state law claims and the federal law in this case, we have no hesitancy in pronouncing enough equivalency to satisfy § 301(a). In effect, the

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Nightcaps have attempted to avoid the Copyright Act by presenting as many state law causes of action to the court as possible. The Nightcaps’ argument is like a ventriloquist’s attempt to present a copyright action in the voice of state law claims. However, if the language of the act could be so easily circumvented, the preemption provision would be useless, and the policies behind a uniform Copyright statute would be silenced

Id, at 289-90.

All of Plaintiffs’ state law theories can be distilled down to a general claim that

Defendants misappropriated the images or likeness reflected in the subject photographs.

Cases which have evaluated claims for misappropriation of likeness routinely find that

they are preempted by the Copyright Act. For instance, in Baltimore Orioles, Inc. v.

Major League Baseball Players Ass’n, 805 F.2d 663 (7th Cir. 1986), baseball players

claimed that telecasts of their baseball games were made without the players’ consent and

that Major League baseball teams misappropriated the players’ property rights in their

performances by playing the telecasts. The works in which the players claimed rights

were the telecasts of the games. The major league organization brought an action seeking

declaratory judgement that they had the exclusive rights to the telecasts. The Seventh

Circuit applied the two-part test and determined that the clubs’ copyright in the telecasts

preempted the players’ right of publicity claim in their performances:

Although the Clubs own the copyright to the telecasts of major league baseball games, the Players claim that broadcasts of these games made without their express consent violate their rights to publicity in their performances. For the reasons stated below, we hold that the Clubs’ copyright in the telecasts of major league baseball games preempts the Players’ rights of publicity in their game-time performances.

Id, at 674.

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Similarly, in Ahn v. Midway Mfg. Co., 965 F. Supp. 1134 (N.D. Ill. 1997), a

group of martial artists had their images converted into characters appearing in home

video games. The Court found that the images were presented in the context of an

original choreographed work which fell within the subject matter of the copyright laws.

Accordingly the Copyright Act preempted the martial arts practitioners’ claims that their

rights of publicity were violated by use of their images in the video games:

[T]he right of publicity is equivalent to one of the rights in § 106 because it is infringed by the act of distributing, performing or preparing derivative works. Thus, plaintiffs’ claim is preempted.

Id. at 1138.

Plaintiffs’ other causes of action are likewise preempted because all of them are

“equivalent” to claims that could be made under the Copyright Act. See, All Pro Sports

Camp, Inc. v. Walt Disney Co., 727 So. 2d 363, 366 (Fla. 5th DCA 1999) (Plaintiff

conceded that the civil theft claim is preempted by the Federal Copyright Act, 17 U.S.C.

§ 101 et seq.); Spear Mktg., Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015)

(State claims of trade secret theft held preempted by the Copyright Act).

Having established that Plaintiffs various state law claims are actually within the

scope of the Copyright Act, it is clear that this Court cannot hear those claims because

they are expressly exempted by Federal law and may only be brought in a Federal

District Court. Pursuant to 28 U.S.C.A. §1338(a), the Federal Courts have exclusive

jurisdiction over copyright claims:

(a) The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks. No State court shall have

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jurisdiction over any claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights.

See, also, Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 231, n. 7, 84 S. Ct. 784, 789

(1964) (“The purpose of Congress to have national uniformity in patent and copyright

laws can be inferred from such statutes as that which vests exclusive jurisdiction to hear

patent and copyright cases in federal courts, 28 U.S.C. s 1338(a)…”).

Florida Rule of Civil Procedure l.140(b)(1) requires the Court to dismiss a claim

when it lacks jurisdiction over the subject matter. See, Schmauss v. Snoll, 245 So. 2d

112, 113 (Fla. 3d DCA 1971) (“Lack of jurisdiction over the subject matter may be raised

at any time; furthermore, lack of jurisdiction is properly raised by motion to dismiss.”).

The issue of federal preemption is a question of subject matter jurisdiction and is properly

raised at this stage of the proceedings. See, Hernandez v. Coopervision, Inc., 661 So. 2d

33, 34 (Fla. 2d DCA 1995) (“We begin our analysis by noting that the issue of federal

preemption is a question of subject matter jurisdiction.”).5 If Federal law has preempted a

field or assigned exclusive jurisdiction over an issue to the Federal Courts, state courts

lack subject matter jurisdiction to entertain the claim. See, Jacobs Wind Elec. Co., Inc. v.

Dep’t of Transp., 626 So. 2d 1333, 1335 (Fla. 1993) (“Under the United States

Constitution’s supremacy clause, the state cannot assert jurisdiction where Congress

clearly intended to preempt a field of law.”).

5 Defendants need not themselves claim to hold any interest in the copyright to assert Federal preemption. See, Laws v. Sony Music Entm't, Inc., 294 F. Supp. 2d 1160, 1165 (C.D. Cal. 2003), aff'd, 448 F.3d 1134 (9th Cir. 2006) (“The court rejects Plaintiff's contention that Defendant lacks standing to bring a preemption claim. One need not have an ownership interest in a copyright to assert a preemption defense.”).

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Florida cases hold that a claim must be dismissed if it sounds in copyright or falls

within the scope of the Copyright Act because the Federal Courts have exclusive

jurisdiction over those claims:

The trial court lacked subject matter jurisdiction over the counterclaim because it involved rights arising out of the federal copyright laws and pled copyright infringement. … A suit for copyright infringement arises under the copyright laws and falls within the exclusive jurisdiction of the federal courts. See Arthur Young & Co. v. City of Richmond, 895 F.2d 967, 970 (4th Cir. 1990); National Broadcasting Co. v. Copyright Royalty Tribunal, 848 F.2d 1289, 1295 (D.C.Cir. 1988); Topolos v. Caldewey, 698 F.2d 991, 993 (9th Cir. 1983). The counterclaim, therefore, was properly dismissed.

EMSA Ltd. P’ship v. Lincoln, 691 So. 2d 547, 549 (Fla. 4th DCA 1997); See, also,

Sparta Surf, Inc. v. Korda, 599 So. 2d 242, 243 (Fla. 4th DCA 1992) (“Copyright law is

within the exclusive jurisdiction of the federal district courts.”).

Plaintiffs’ Complaint must be dismissed in its entirety for lack of subject matter

jurisdiction.

III. PLAINTIFFS LACK STANDING TO ASSERT THESE CLAIMS. The Plaintiffs do not claim that they own the copyrights to the subject

photographs nor do they claim any other ownership right under the common law or

otherwise. Because Plaintiffs do not own the subject images, they lack standing to claim

damages associated with their alleged misappropriate. Only the owner of those

photographs can bring such claims and he or she is not among the named Plaintiffs.

Defendants have argued that Plaintiffs must bring their claims in Federal Court

and within the context of the Copyright Act because all of their causes of action center

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around the alleged misappropriation of four photographs identified in the Complaint.

Only the owner of the copyright can bring such an action:

To establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.

Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 1296

(1991). Plaintiffs’ claim founds on the first element: they cannot prove ownership of any

rights in the subject photographs. That failure is fatal to the underlying copyright claim,

but the lack of standing undermines every other claim brought by the Plaintiffs, whether

by statute or under common law.

Ownership rights of photograph are defined entirely in terms of copyright law,

with the initial ownership being held by the photographer. This fundamental principle of

copyright law has been recognized since the Nineteenth Century. See, Burrow-Giles

Lithographic Co. v. Sarony, 111 U.S. 53, 54, 4 S. Ct. 279, 279 (1884) (“That the plaintiff,

about the month of January, 1882, under an agreement with Oscar Wilde, became and

was the author, inventor, designer, and proprietor of the photograph in suit, the title of

which is ‘Oscar Wilde, No. 18,’…”); See, also, Alaska Stock, LLC v. Houghton Mifflin

Harcourt Pub. Co., 747 F.3d 673, 678 (9th Cir. 2014) (“When a photographer has fixed

an image in a tangible medium of expression, he owns the copyright, even though he has

not registered it with the Copyright Office.”); Gener-Villar v. Adcom Grp., Inc., 560 F.

Supp. 2d 112, 125 (D.P.R. 2008) (“Copyright protection begins when a work-in this case,

the photographs at issue-assumes tangible form, and vests initially in the author of the

work.”).

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The rights granted to the owner of a copyright include the right to reproduce the

copyrighted work, the right to prepare derivative works based upon the work, the right to

distribute copies of the work to the public, the right to perform the copyrighted work

publicly, and the right to display the copyrighted work publicly. See, 17 U.S.C.A. §106.

“Under the Copyright Act, only the ‘legal or beneficial owner of an exclusive right under

a copyright’ has standing to sue for infringement of that right.” Righthaven LLC v.

Hoehn, 716 F.3d 1166, 1169 (9th Cir. 2013). Without ownership of any of the exclusive

rights under the Copyright Act, the plaintiff lacks standing to sue for infringement and

dismissal is proper. Id. at 1172.

Plaintiffs have failed to allege their ownership of the copyrights associated with

the subject photographs. Plaintiffs have not alleged the existence of a copyright

registration in their respective names or suggested that they have taken any rights in the

photographs through an assignment of the copyright or any portion of those copyrights.6

6 This should not be surprising. It is standard practice for professional photographers to require a release and waiver of copyright claims as a condition for their services. Those waivers typically include all rights of publicity associated with the photographs. See, e.g., “Property And Model Releases”, American Society of Media Photographers, http:// asmp.org/tutorials/property-and-model-releases.html#.VzVZbL1KCvB (last accessed 5/13/16). It is extremely unlikely that Plaintiffs can properly allege standing through an amended complaint as they almost certainly have no rights in the subject photographs as a matter of law and fact. Plaintiffs cannot acquire “retroactive standing” through an assignment received after this lawsuit was filed. See, McLean v. JP Morgan Chase Bank Nat. Ass'n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012) (“[A] party's standing is determined at the time the lawsuit was filed. (citation omitted). Stated another way, ‘the plaintiff's lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed.’… Thus, a party is not permitted to establish the right to maintain an action retroactively by acquiring standing to file a lawsuit after the fact.”).

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Standing can be raised by way of a motion to dismiss. The Court will evaluate a

claim of lack of standing in the same way it would evaluate any motion to dismiss. See,

generally, Payne v. City of Miami, 927 So. 2d 904, 906 (Fla. 3d DCA 2005) (“In

determining whether to dismiss a complaint for lack of standing, we must confine our

review to the four corners of the complaint, draw all inferences in favor of the pleader,

and accept all well-pled allegations in the complaint as true.”). Because the Plaintiffs do

not own the copyrights for the subject photographs – or at the very least, they neglected

to allege their ownership rights – they lack standing to sue and all of their claims must be

dismissed. That result would be the same even if Federal copyright law did not apply.

Compare, Timko v. Triarsi, 898 So. 2d 89, 90 (Fla. 5th DCA 2005) (Plaintiff had no

standing to bring a shareholder derivative suit when he could not show continuous

ownership of stock in the corporation).

IV. PLAINTIFFS FAILED TO JOIN AN INDISPENSABLE PARTY As previously noted, the Plaintiff do not allege that they hold the copyright to the

subject photographs or that they have any other ownership interest in them that would be

recognized by the common law. The failure to include that allegation is surely a

reflection of the fact that the copyrights in question are owned by the individual

photographers who took the photographs.7 See, Alaska Stock, LLC v. Houghton Mifflin

7 It is, conceivable that one of more of the photographs represents a self-portrait taken by the Plaintiff herself. However, a review of the photographs attached to the Complaint suggest that this possibility is exceptionally unlikely. In any event, the Complaint does not allege that the photographs in question are self-portraits. Therefore, they must have been taken by some third-party who is not before the Court.

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Harcourt Pub. Co., 747 F.3d 673, 678 (9th Cir. 2014) (The photographer owns the

copyright with respect to images he made).

The Court cannot determine who has the right to enforce an ownership interest in

the photographs unless the likely owners are before the Court. Based on the pleading

filed by the Plaintiffs and standard practices in the photography industry, it almost a

certainty that the Plaintiffs do not hold any of those ownership interests. Unless the actual

owner of the copyright is joined as a party to this suit, Defendants could be subject to

additional litigation and additional exposure to damages should the actual owner of the

copyright appear at a later date.

Rule 1.140(b)(7) permits the Defendants to assert Plaintiffs’ failure to join

indispensable parties through a motion to dismiss:

(b) How Presented. Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader:… (7) failure to join indispensable parties.

The Rule envisions a “speaking motion’ explaining why those additional parties must be

joined to the suit. See, City Nat. Bank of Miami v. Simmons, 351 So. 2d 1109, 1110 (Fla.

4th DCA 1977) (“Obviously, this contemplates a speaking motion which should contain

the facts demonstrating why the alleged indispensable parties are indispensable.”).

Defendants have made that showing here.

The standard formulation for who is an indispensable party in Florida is well

known:

An indispensable party is one whose interest in the controversy makes it impossible to completely adjudicate the matter without affecting either

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that party’s interest or the interests of another party in the action. Hertz Corp. v. Piccolo, 453 So.2d 12, 14 n. 3 (Fla. 1984) (describing indispensable parties as ones so essential to a suit that no final decision can be rendered without their joinder); Bastida v. Batchelor, 418 So.2d 297, 299 (Fla. 3d DCA 1982) (“An indispensable party [is] one without whom the rights of others cannot be determined.”). As we stated in Oakland Properties Corp. v. Hogan, 96 Fla. 40, 117 So. 846, 848 (1928) (quoting Indian River Mfg. Co. v. Wooten, 48 Fla. 271, 37 So. 731, 731 (1904) (syllabus)):

The general rule in equity is that all persons materially interested, either legally or beneficially, in the subject-matter of the suit, must be made parties either as complainants or defendants, so that a complete decree may be binding upon all parties.

The Fourth District elaborated on this rule in Phillips v. Choate, 456 So.2d 556, 557 (Fla. 4th DCA 1984) (quoting Shields v. Barrow, 58 U.S. (17 How.) 130, 139, 15 L.Ed. 158 (1855)), where it defined an indispensable party as one whose interest in the controversy is of “such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.”

Florida Dept. of Revenue v. Cummings, 930 So. 2d 604, 607 (Fla. 2006); See, also,

Parker v. Parker, 185 So. 3d 616, 618 (Fla. 4th DCA 2016) (“Indispensable parties are

necessary parties so essential to a suit that no final decision can be rendered without their

joinder.”).

The owner of a copyright is, of course, an indispensable party where an individual

attempts to enforce the rights associated with that protected image:

[T]he owner of a copyright is an indispensable party to an infringement action by a licensee against a stranger. The source of this concept is the ancient rule that the exclusive licensee of a patent or a copyright must bring an infringement action in the name of the owner of the patent or copyright. (Waterman v. MacKenzie (1891) 138 U.S. 252, 11 S.Ct. 334, 34 L.Ed. 923. 7 Wright & Miller, Federal Practice and Procedure (1972 ed.) s 1606, at p. 50.) When the copyright owner is not amenable to In

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personam jurisdiction of the court and when he refuses to prosecute or to join in the infringement action, the action cannot proceed unless he can be joined as an involuntary plaintiff.

Followay Productions, Inc. v. Maurer, 603 F.2d 72, 74 (9th Cir. 1979); See, also, Nafal v.

Jay Z, 550 Fed. Appx. 468, 469 (9th Cir. 2013) (“Therefore, the district court properly

dismissed this action because Nafal failed to join the copyright owners as required under

the Copyright Act…”); Lipton v. The Nature Co., 781 F. Supp. 1032, 1035 (S.D.N.Y.

1992) aff’d sub nom. Lipton v. Nature Co., 71 F.3d 464 (2d Cir. 1995) (“If Wein were not

a party to this suit, Nature would face a strong likelihood of being subject to duplicative

litigation and inconsistent judgments. Wein is thus an indispensable party, as the validity

of his copyright is directly at stake.”); First Fin. Mktg. Services Group, Inc. v. Field

Promotions, Inc., 286 F. Supp. 295, 298 (S.D.N.Y. 1968) (“It is familiar law that the

copyright owner is an indispensable party to a suit where the validity of his copyright is

in issue.”).

This case cannot proceed until such time as the true owner of the rights in

question is joined as a party.

V. PLAINTIFFS’ OVERLAPPING AND DUPLICATIVE CAUSES OF

ACTION VIOLATE THE SINGLE PUBLICATION RULE

Plaintiffs have filed this lawsuit alleging one set of facts: they believe Defendants

copied the Plaintiffs’ photographs and made use of them without permission. That single

alleged act has metastasized into ten separate counts. In Count VII, the Plaintiffs frame

that injury under a defamation theory. The Plaintiffs allege that their photographs have

been associated with an unsavory businesses that brings them into disrepute.

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It is improper to divide that single claim into nine alternative counts for the same

alleged wrongdoing:

The state of Florida provides for a “single publication/single action rule,” which means a single publication may give rise to a single cause of action. Callaway Land, 831 So.2d at 208, citing Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So.2d 607, 609 (Fla. 4th DCA 1975). This rule prohibits multiple actions which arise from the same alleged wrong. Callaway Land, 831 So.2d at 208. “The rule is designed to prevent plaintiffs from circumventing a valid defense to defamation by recasting essentially the same facts into several causes of action all meant to compensate for the same harm.” Messenger v. Gruner + Jahr USA Publ’g, 994 F.Supp. 525, 531 (S.D.N.Y.1998), vacated on other grounds by, 208 F.3d 122 (2d Cir. 2000), quoted in Callaway Land, 831 So.2d at 208; see also Trujillo v. Banco Central Del Ecuador, 17 F.Supp.2d 1334, 1339 (S.D.Fla.1998) (holding that false light privacy claim was barred by single publication/single action rule where it was based on the same facts giving rise to the claim for defamation).

Kamau v. Slate, 2012 WL 5390001, at *7 (N.D. Fla. 2012).

A plaintiff cannot avoid the particular limitations placed on a defamation claim by

simply calling the action something else. For instance, in Orlando Sports Stadium, Inc. v.

Sentinel Star Co., 316 So. 2d 607 (Fla. 4th DCA 1975), a litigant complained about

injurious statements in certain news articles. In addition, to bringing a conventional

defamation action, the plaintiff asserted a claim for tortious interference with a business

relationship. The Fourth District Court of Appeal held that this was improper claim

splitting under the single publication rule:

The numerous news articles attached to the instant amended complaint are the same publications upon which appellants base their claim for intentional interference in count one and for libel in count two. The thrust of appellants’ complaint in both counts is that said news articles were injurious to appellants’ reputation. The appellants contend that counts one and two are two separate causes of action. This court cannot agree with such contention as such actions are nothing more than separate elements

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of damage flowing from the alleged wrongful publications. ‘Florida courts have held that a single wrongful act gives rise to a single cause of action, and that the various injuries resulting from it are merely items of damage arising from the same wrong’, Easton v. Wier, Fla.App., 167 So.2d 245.

As stated by the court in Morrison v. National Broadcasting Co., 19 N.Y.2d 453, 280 N.Y.S.2d 641, 227 N.E.2d 572, ‘We look for the reality, and the essence of the action and not its mere name.’ A contrary result might very well enable plaintiffs in libel to circumvent the notice requirements of Fla.Stat. 770.01 by the simple expedient of redescribing the libel action to fit a different category of intentional wrong.

Id., at 609.

Plaintiffs have based all ten Counts on one alleged action of Defendants copying

individual photographs. Certain of those claims obviously amount to window dressing on

a conventional defamation claim. The obvious candidates include the invasion of

privacy8 and negligence counts. However, the “thrust” of all these Counts are the same.

When analyzed carefully, all of the claims involve the copying and publication of the

subject photographs. That claim must itself be brought under the Copyright Act.

8 Plaintiffs’ real complaint is that they do not wish to be associated with the Defendants. That associational claim does not bear much resemblance to a defamation action, but comes much closer to the disavowed tort of false light invasion of privacy. See, Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1114 (Fla. 2008). Even if that tort were still viable in Florida, it is questionable whether Plaintiffs could plead a claim under that theory. Defendants’ business is lawful and enjoys a good reputation within its community. Plaintiffs’ modeling activities are only quantitatively different from the exposure in which Defendants’ performers engage (i.e. how much flesh is exposed for money). In the case of at least some of the Plaintiffs, there is no quantitative or objective difference between their activities and those of the Defendants’ performers. See, generally, Complaint at 15, ¶82 (“Young… was named the February 2010 Playboy Playmate of the Month”).

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VI. PLAINTIFFS FAIL TO ALLEGE OWNERSHIP RIGHTS IN THE SUBJECT PHOTOGRAPHS REQUIRED TO SUPPORT A CAUSE OF ACTION FOR VIOLATION OF §540.08 FOR THE UNAUTHORIZED PUBLICATION OF THEIR IMAGES – PREEMPTION APPLIES.

Defendants have already addressed the fundamental obstacles to a recovery by

Plaintiffs under any of their theories: (1) preemption by the Copyright Act; (2) lack of

standing; and (3) failure to join an indispensable party.9 The Plaintiffs seem to believe

that they can sue the Defendants simply because the Defendants allegedly made use of

their image. However, §540.08, Fla.Stat. does not impose strict liability simply because

someone’s face is recognizable in a photograph – even one used for commercial

purposes. See, Epic Metals Corp. v. CONDEC, Inc., 867 F. Supp. 1009, 1016 (M.D. Fla.

1994) (“It is not enough that the publisher make money through sales of product, but that

the name or photograph distinguishes the product to rise to the level of commercial

exploitation prohibited by the statute. Valentine, 698 F.2d at 433 (‘use of a name is not

harmful simply because it is included in a publication sold for profit.’)”).

The statute includes a number of exceptions including the use of images in the

context of reporting matters of public interest and where the individual is not easily

identifiable. See, generally, §540.08(4), Fla.Stat. However, the most important exception

9 The identity of those indispensable individuals is unknown but their existence is a certainty. The indispensable parties are the photographers who actually hold the copyright to the subject images. Those same individuals almost certainly hold standard model releases from the Plaintiffs which would also preclude this litigation. However, Defendants’ arguments for purposes of this Motion to Dismiss turn on the former issue, which can be determined on the face of the Complaint (since Plaintiffs allege no ownership interest in the photographs).

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occurs where the person portrayed either never had rights in the particular image or gave

those rights up for purposes of republication:10

(4) The provisions of this section shall not apply to: … (b) The use of such name, portrait, photograph, or other likeness in connection with the resale or other distribution of literary, musical, or artistic productions or other articles of merchandise or property where such person has consented to the use of her or his name, portrait, photograph, or likeness on or in connection with the initial sale or distribution thereof….

As previously noted, the Plaintiffs do not allege that they own any rights in the

photographs which are the subject of this action. Neither have they disclaimed the

assignment of their rights to the photographer (as would happen automatically under

copyright law) or to a previous publisher.

10 The Plaintiffs do not allege that they own the copyrights or other rights in the images. Defendants have previously shown that, in these circumstances, the copyright would lie with the author of the work – the photographer – by default. It is extremely unlikely that this defect in the pleading can be remedied through amendment as the Plaintiffs almost certainly did not acquire the copyright form the photographer prior to instituting this case. To the contrary, industry practice would be for the photographer to secure a full release of rights from the Plaintiffs, including the right of publicity. In that likely scenario, Plaintiffs have no right to bring a claim which they previously released because §540.08(4)(b), Fla.Stat. specifically disclaims a cause of action under those circumstances. Case law too would support the dismissal of this case where the subject of the photograph has given a release.

Based on the undisputed record, the district court correctly found that Miller could not recover under Fla. Stat. §540.08 for the time periods expressly covered by the three releases she signed regarding the 2000 and 2001 photographs. Under a plain reading of the statute, Miller's express consent to the use of the photographs from January 28, 2000 to the first of January 2003, via the releases she signed, precludes her from suing A-B for its use of the photographs during that period.

Miller v. Anheuser Busch, Inc., 348 Fed. Appx. 547, 549 (11th Cir. 2009).

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Even if Plaintiffs had properly alleged ownership rights in the photographs, their

claim could not be heard by this Court because it sounds in copyright and the Federal

Courts have exclusive jurisdiction over such claims. Defendants have briefed this issue at

length, both in general and with respect to the particular claim of misappropriate or

wrongful use of likeness. The gist of the case law is that a plaintiff cannot maintain a

state law claim for misappropriation or misuse of the right of publicity unless there is

some “extra element” which would take that claim outside of the copyright law. There is

no such “extra element” as Plaintiffs’ rights and alleged damages flow entirely from the

alleged misappropriation of the four photographs attached to the Complaint. The case of

Alaskasland.Com, LLC v. Cross, 357 P.3d 805, 813-15 (Alaska 2015) provides

exceptionally useful guidance in that area. Because that opinion is so helpful, Defendants

beg the Court’s indulgence in a lengthy quotation;

Alaskasland’s misappropriation claim fails the extra-element test at least with respect to its photographs of Mt. McKinley and of Moore’s family fishing. At oral argument before us Alaskasland contended that, because its misappropriation claim included an extra element, “the unauthorized use of plaintiff’s goodwill and reputation,” it could not be preempted by the Copyright Act. Alaskasland also argued that its misappropriation claim encompassed more than the mere taking of three photographs, but rather included the Realtors’ “free-riding on [Alaskasland’s] extensive advertising and marketing efforts.”… Although Mathes shot the photo of the Susitna Shores sign and the photo of Mt. McKinley, and obtained from Moore the photo of Moore’s family fishing on the Susitna River, Alaskasland argues that these three photographs are infused with the extensive time and money it expended in marketing Susitna Shores. But the misappropriation of “sweat equity” expended in the creation and advertisement of a copyrightable work is “precisely the type of misconduct the copyright laws are designed to guard against.” Accordingly Alaskasland’s assertion that its photographs are the product

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of extensive effort and investment does not save its misappropriation claim, at least with respect to the mountain photo and the fishing photo, from preemption under the Copyright Act. Alaskasland defended its misappropriation claim in the superior court by arguing that the taking of the three photos included taking “the unique and stylized version of the name ‘Susitna Shores’ embodied in [the photograph of the subdivision] sign,” into which Alaskasland had expended considerable time and money. At oral argument before us Alaskasland stated that its misappropriation claim encompassed not only the taking of the three photos, but also the misappropriation of its “advertising efforts ... because [it] spent a lot of money and worked really hard to create [Susitna Shores’] goodwill and reputation.” It did not argue to the superior court, nor to us, that the generic photograph of Mt. McKinley or the photograph of Moore’s family fishing on the banks of the Susitna, both of which the Realtors used to market the Goode property, somehow embody the sweat equity and money it expended in marketing the Susitna Shores subdivision. It indisputably acquired the photographs at little cost, and asserts comparable stock photos would have cost under $5,000, a sum far less than the $100,000 in damages it claims to have suffered from the Realtors’ misappropriation of its photographs. … But Alaskasland does not further articulate its argument that its photo of a mountain and its photo of a family fishing represent the time and effort it expended in marketing Susitna Shores. And even if time, energy, and effort were expended in the creation of these two photographs, protection of this exertion falls exclusively under the ambit of the Copyright Act. With respect at least to these two photographs, Alaskasland offers no “extra element” to save its misappropriation claim from preemption: it simply claims that they were taken “without permission” and that Alaskasland had circulated them to the public before. Because photographs come within the subject matter of copyright, and because the Copyright Act provides a copyright holder exclusive rights for their reproduction, distribution, and display—the same rights Alaskasland asserts in its misappropriation claim—the Copyright Act preempts Alaskasland’s misappropriation claims with respect to the mountain photo and the fishing photo. Thus if Alaskasland desired to prevent these photographs from being reproduced and displayed without its permission, it should have sought an injunction under the Copyright Act

Alaskasland.Com, LLC v. Cross, 357 P.3d 805, 813-15 (Alaska 2015).

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VII. PLAINTIFFS FAIL TO STATE A CAUSE OF ACTION FOR COMMON LAW INVASION OF PRIVACY - MISAPPROPRIATION

Plaintiffs’ claim for common law invasion of privacy – misappropriate completely

overlaps their statutory claim for unlawful use of likeness under §540.08, Fla.Stat. – there

is nothing new added by this Count.11 For that reason, the invasion of privacy law suffers

from all of the defects associated with the statutory cause of action and is due to be

dismissed for that reason. See, Daboub v. Gibbons, 42 F.3d 285, 289-90 (5th Cir. 1995)

(State-law claims of plaintiff musical group which alleged that defendant musical group

unlawfully copied, distributed, and performed lyrics of plaintiff’s song, including

defamation, were equivalent to cause of action under Copyright Act and were thus

preempted by Act. 17 U.S.C.A. § 301(a)).

While Florida recognizes a right of privacy, it is not intended to include the

actions complained of in this case:

11 The Plaintiffs may attempt to argue that the invasion of privacy count is distinguishable because they claim unique damages arising from an unwanted affiliation with the Defendants’ business. That is, they may claim a reputational injury which is separate from the economic losses encompassed by the statutory misappropriation claim. In essence, Plaintiffs would be pleading a false light defamation claim. However, Florida does not recognize any such tort claim separate from a conventional action for defamation. Florida’s Supreme Court has specifically disavowed the common law tort of false light defamation. See, Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1114 (Fla. 2008) (“However, because the benefit of recognizing the tort, which only offers a distinct remedy in relatively few unique situations, is outweighed by the danger of unreasonably impeding constitutionally protected speech, we decline to recognize a cause of action for false light invasion of privacy.”); See, also, Kamau v. Slate, 2012 WL 5390001 at *7 (N.D. Fla. 2012) (“For many years, Florida had recognized a claim for “false light in the public eye” as a category of an invasion of privacy claim,… However, the Florida Supreme Court has more recently held that it no longer recognizes false light as a viable cause of action.”).

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“The right of privacy is defined as the right of an individual to be let alone and to live a life free from unwarranted publicity[,]” Harms v. Miami Daily News, Inc., 127 So.2d 715, 717 (Fla. 3d DCA 1961); it is “the right to be let alone, the right to live in a community without being held up to public gaze if you don’t want to be held up to public gaze.” Cason, 20 So.2d at 248. In recognizing the tort, the Cason court defined an actionable invasion of the right of privacy as: “The unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.” Cason, 20 So.2d at 249 (Fla. 1944). Claims based on this tort require the allegation and proof of publication to a third person of personal matter. Cason; Stoddard.

State Farm Fire & Cas. Co. v. Company, Inc., 654 So. 2d 944, 948-49 (Fla. 3d DCA

1995). Defendants are not alleged to have published private information about the

Plaintiffs.12 There is nothing about the subject photographs which is inherently

embarrassing For instance, the Plaintiffs appear fully clothed in each image and are not

engaged in any action which would place them in a negative light. The alleged

association with Defendants’ business is not the sort of thing which lead to ridicule or

censure.13Furthermore, the Plaintiffs do not allege that anyone actually saw their images,

12 The Plaintiffs do not allege when and where the photographs were taken. “A photograph taken in a public place is not private.” Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977). 13 See, generally, Heath v. Playboy Enterprises, Inc., 732 F. Supp. 1145, 1151 (S.D. Fla. 1990):

Plaintiff argues that republication of the photograph in the “damaging context” of Playboy magazine has “stigmatized” the child. An invasion of privacy focuses on the matter being published, not its context or inferences. Restatement (Second) of Torts § 652D (1977). See Ault v. Hustler Magazine, Inc., 860 F.2d 877, 882 (9th Cir.1988), cert. denied, 489 U.S. 1080, 109 S.Ct. 1532, 103 L.Ed.2d 837 (1989) (publication of

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recognized their images or actually thought that the Plaintiffs were endorsing

Defendants’ business. There is nothing about the mere use of the images which would

support a claim for damages for invasion of privacy rights.

There are additional reasons why this specific tort claim cannot stand. Plaintiffs

provide no details as to how photos came to be taken or used. However, the Complaint

makes it clear that these were not original photographs taken for this express purpose.

Rather, the Complaint states that the photographs were allegedly “pirated and altered” by

the Defendants. See, Complaint at 1, ¶1. It appears, therefore, that these photographs had

already been utilized by the Plaintiffs for their self-promotion or, perhaps, in connection

with the advertising campaigns of third parties.14 “Republication of facts already

publicized elsewhere cannot provide a basis for an invasion of privacy claim.” Heath v.

Playboy Enterprises, Inc., 732 F. Supp. 1145, 1149 (S.D. Fla. 1990), citing Valentine v.

C.B.S., Inc., 698 F.2d 430, 433 (11th Cir. 1983) and Faloona v. Fredrickson v. Hustler

Magazine, Inc., 799 F.2d 1000, 1006 (5th Cir. 1986).

The Plaintiffs allege that the photographs were used by Defendants without their

permission. However, that fact does not bear on the issue of whether private facts were

truthful information, even in a pornographic magazine, has been held to be a statement of opinion protected by the first amendment and not supportive of a defamation claim).

Because the photographs themselves are not scandalous or embarrassing, the fact that they allegedly appeared in conjunction with an advertisement for a gentlemen’s club cannot lead to a claim of invasion of privacy. 14 It is most likely that these were “stock” photos of the Plaintiffs of the kind available on the Internet licensed for a few dollars or pennies at the click of a mouse.

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wrongfully disclosed. Where the information which is published does not concern an

intimate, private fact, consent or lack of consent to the publication is simply irrelevant:

Consent is only relevant to the publication of private facts tort where a genuine issue exists as to either (1) the plaintiff’s status as a public figure or (2) the legitimacy of public concern (the fourth element under the private facts theory). See e.g., Harms v. Miami Daily News, Inc., 127 So.2d 715, 718 (3d DCA 1961); Stafford, 327 So.2d at 872; Jacova, 83 So.2d at 37; Valentine, 698 So.2d at 433. Even with this exception, however, consent is never reached where no disclosure of private facts can be demonstrated.

Heath, 732 F. Supp. at 1150.

Even if this Court had jurisdiction over this case and the Plaintiffs could prove

standing, the duplicative claim for invasion of privacy must be dismissed for failure to

state a cause of action under Florida law.

VII. PLAINTIFFS FAIL TO STATE A CAUSE OF ACTION FOR CIVIL THEFT UNDER §772.11, FLA.STAT. OR §812.014, FLA. STAT. Plaintiffs’ claim for civil theft must fail for two reasons: one procedural and one

substantive.

A. FAILURE TO GIVE STATUTORY NOTICE.

The Plaintiffs’ civil theft claim is due to be dismissed for failure of a statutory

condition precedent to maintaining this action:

… Before filing an action for damages under this section, the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section. If the person to whom a written demand is made complies with such demand within 30 days after receipt of the demand, that person shall be given a written release from further civil liability for the specific act of theft or exploitation by the person making the written demand.

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§772.11, Fla.Stat. The case law shows that the statute means what it says. See, e.g., In re

Naturally Beautiful Nails, Inc., 262 B.R. 131 (Bankr. M.D. Fla. 2001) (Under Florida

law, before action for civil theft is filed, potential plaintiff must first make written

demand for payment on defendant and cannot commence suit until 30 days later, in event

no payment is made.).

In this case, Plaintiffs’ Complaint does not allege that the statutory notice was

given and does not attach any demand or notice to the Complaint. Accordingly, the

Complaint must be dismissed pursuant to §772.11, Fla.Stat.

B. THE ALLEGATIONS IN THE COMPLAINT ARE NOT SUFFICIENT TO SUPPORT A CLAIM FOR CIVIL THEFT. Section 772.11 of the Florida Statutes creates a cause of action for “civil theft”.

To maintain a cause of action under the civil theft statute, Plaintiffs must show by “clear

and convincing evidence” an injury caused by the defendant’s violation of one or more of

the provisions of the criminal theft laws found in §§812 012-037, Fla.Stat.

Under Florida law, a cause of action for civil theft “derives from two statutory sources: the criminal section setting forth the elements of theft, and the civil section granting private parties a cause of action for a violation of the criminal section.” Ames v. Provident Life and Accident Ins. Co., 942 F.Supp. 551, 560 (S.D.Fla. 1994), aff’d, 86 F.3d 1168 (11th Cir.1996). To establish a claim for civil theft, Gotta Have It must show that IMG knowingly obtained or used, or endeavored to obtain or to use, Gotta Have It’s property with the intent to, either temporarily or permanently, deprive Gotta Have It of a right to the property or a benefit from the property, or appropriate the property to IMG’s own use or to the use of any person not entitled to the use of the property. Fla. Stat. § 812.014(1). Further, “it is necessary to show not only that defendant obtained or endeavored to obtain the plaintiff’s property, but that he did so with felonious intent to commit theft.” Ames, 942 F.Supp. at 560. The burden of proof imposed on Gotta Have It in this regard is a clear and

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convincing evidence standard. Small Business Admin. v. Echevarria, 864 F.Supp. 1254, 1264 (S.D.Fla. 1994).

Palmer v. Gotta Have it Golf Collectibles, Inc., 106 F. Supp. 2d 1289, 1303 (S.D. Fla.

2000); See, also, Howard v. Murray, 184 So. 3d 1155 (Fla. 1st DCA 2015) (“To prevail

on an action for civil theft, the plaintiff must prove that the defendant (1) knowingly; (2)

obtained or used, or endeavored to obtain or use, the plaintiff’s property; (3) with

felonious intent; (4) to deprive plaintiff of its right to or a benefit from the property or

appropriate the property to the defendant’s own use or to the use of a person not entitled

to the use of the property.”).

Plaintiffs’ claim for civil theft faces the same substantive hurdle as all of the

Plaintiffs’ other counts: the Plaintiffs lack standing to bring these claims because they do

not allege any ownership interest in the photographs at issue. Rather, the copyright

interest to those photos must be presumed to lie with the original photographer in the

absence of an assignment or other conveyance of rights to the Plaintiffs. Because

Plaintiffs do not allege and cannot prove that they own the photographs which were

allegedly misappropriated by the Defendants, they cannot sustain a claim for civil theft:

To maintain a cause of action under the civil theft statute one must have been injured by the defendant’s violation of one or more of the provisions of the criminal theft laws found in sections 812.012-037, Florida Statutes (1989). See § 772.11, Fla.Stat. (1989). This injury can only be established if it is shown that the victim has a legally recognized property interest in the items stolen. See Sussex Mutual Insurance Co. v. Gabor, 568 So.2d 1004 (Fla. 3rd DCA 1990).

Balcor Prop. Mgmt., Inc. v. Ahronovitz, 634 So. 2d 277, 279 (Fla. 4th DCA 1994).

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The civil theft claim fails for other reasons. In order to effectively plead and prove

a claim for civil theft, a plaintiff must show that the defendant acted with “felonious

intent”:

In order to establish a violation of section 812.014(1), Almeida must show that Amazon “knowingly obtained or used, or endeavored to obtain or to use,” Almeida’s property with the “felonious intent” to “appropriate the property to [Amazon’s] own use or to the use of any person not entitled to the use of the property.” Palmer, 106 F.Supp.2d at 1303; see Ames, 942 F.Supp. at 560 (holding that the plaintiff must show “felonious intent” to commit theft in order to establish a violation of section 812.014(1)). That is, “[t]heft is a specific intent crime, requiring actual knowledge on the part of the defendant.” Healy v. Suntrust Serv. Corp., 569 So.2d 458, 460 (Fla.Dist.Ct.App. 1990).

Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1327 (11th Cir. 2006).

The Almeida case considered facts which are closely analogous to the instant

case. In Almeida, the plaintiff had been photographed as a minor with the permission of

her mother. The photographs were subsequently displayed on-line by Amazon.com on

the front “cover” of a book of photographs. Apparently, Amazon did not secure

permission to make use of the image even if the original photographer did. Nonetheless,

the Court concluded that Amazon could not be held liable for civil theft because there

was no suggestion that it had actual knowledge that the photographs were unauthorized.

Therefore, Amazon could not be found to have the requisite mens rea of “felonious

intent’.

The same is true under this Complaint. The Plaintiffs attempt to hedge their bets

as to what Defendants did and the corresponding level of culpability. Generally speaking,

the allegations are directed to a negligence standard – or perhaps reckless disregard:

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127. At a minimum, Defendants’ conduct was so reckless or wanton in care that it constituted a conscious disregard of or indifference to Hinton’s rights. 128. Alternatively. The method and manner in which Defendants used the image, likeness and/or identity of Hinton further evinces that Defendants were aware or consciously disregarded the fact that Hinton did not consent to Defendants’ use of the image, likeness and/or identity of Hinton to advertise Sinsations.

See, Complaint at 22. These wishy-washy allegations fall far short of the “felonious

intent’ standard required by the case law.

Finally, it must be pointed out again that Plaintiffs’ civil theft claim is a variant on

its true claim for enforcement of the intellectual property rights associated with

authorship / ownership of the photographic images. This Court lacks jurisdiction to hear

those claims. See, Garrido v. Burger King Corp., 558 So. 2d 79, 82 (Fla. 3d DCA 1990)

(“Plaintiff’s claims for … theft of the advertising campaign ideas … are preempted under

section 301(a)…”).

VII. PLAINTIFFS FAIL TO STATE A CAUSE OF ACTION FOR CONVERSION. Plaintiffs have failed to state a claim upon which relief may be granted for

unlawful conversion. That is so because the Plaintiffs’ factual allegations and legal theory

simply does not fit with the elements of the cause of action for conversion:

Conversion is an unauthorized act that deprives another of his or her property, permanently or for an indefinite period of time. Senfeld v. Bank of Nova Scotia Trust Co.(Cayman) Ltd., 450 So.2d 1157, 1160–61 (Fla. 3d DCA 1984). The essence of conversion, however, is not the possession of property by the wrongdoer, but rather such possession in conjunction with a present intent on the part of the wrongdoer to deprive the person entitled to possession of the property. Senfeld, 450 So.2d at 1161; see Wilson Cypress Co. v. Logan, 120 Fla. 124, 127, 162 So. 489, 490–91

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(Fla. 1935) (conversion consists of a taking with intent to exercise ownership inconsistent with owner’s right of possession).

Brand v. Old Republic Nat. Title Ins. Co., 797 So. 2d 643, 646 (Fla. 3d DCA 2001); See,

also, Mayo v. Allen, 973 So. 2d 1257, 1258 (Fla. 1st DCA 2008) (“It is well settled that a

conversion is an unauthorized act which deprives another of his property permanently or

for an indefinite time.”).

At its core a claim for conversion is fundamentally a claim based on possession.

In Florida, an action for conversion is regarded as a possessory action and the plaintiff must have a present or immediate right of possession of the property in question. Allen v. Universal C.I.T. Credit Corp., 133 So.2d 442 (Fla.1st DCA 1961).

Page v. Matthews, 386 So. 2d 815, 816 (Fla. 5th DCA 1980); See, also, Prou v. Giarla, 62

F. Supp. 3d 1365, 1380 (S.D. Fla. 2014) (“To prove a conversion claim, a plaintiff must

show “ownership of the subject property and ... that the other party wrongfully asserted

dominion over that property.”)

This presents a double problem for the Plaintiffs. The Plaintiffs allege that the

Defendants made use of their image, but do not tie this to any exercise of dominion or

control over any actual “possession” (i.e. they do not claims that they “were permanently,

or for an indefinite time, deprived of property”). More importantly, the Plaintiffs do not

allege that they actually own the photographs in question. Without a positive assertion

that they have a present right in the subject photographs, Plaintiffs cannot state a cause of

action for conversion. See, Page v. Matthews, 386 So. 2d 815, 816 (Fla. 5th DCA 1980)

(“[T]he plaintiff must have a present or immediate right of possession of the property in

question.”); See, also, Edwards v. Landsman, 51 So. 3d 1208, 1213 (Fla. 4th DCA 2011)

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(“Thus, to state a claim for conversion, one must allege facts sufficient to show

ownership of the subject property and facts that the other party wrongfully asserted

dominion over that property.”).

While a state law conversion claim can probably be asserted with respect to a

particular printed image (for instance, an image that has been framed or mounted), there

is no good case law to suggest that conversion can reach the right to make use of an

image or to claim damages where the possession do not involve a physical object.

Instead, this is the job of copyright law. As we have seen throughout, Plaintiffs’

Complaint, the claim for conversion associated with the images attached as exhibits is, in

reality, a claim for enforcement of rights under copyright law. As such, the claim is

preempted by Federal law and this Court lacks subject matter jurisdiction over the

conversion claim. See, Garrido v. Burger King Corp., 558 So. 2d 79, 82 (Fla. 3d DCA

1990) (“Plaintiff’s claims for conversion and theft of the advertising campaign ideas

conveyed to Burger King are preempted under section 301(a) of the act because the

elements of those claims are equivalent to those protected and thus preempted by the

act.”); See, also, Daboub v. Gibbons, 42 F.3d 285, 289-90 (5th Cir. 1995) (State-law

claims, including conversion, were equivalent to cause of action under Copyright Act and

were thus preempted by Act. 17 U.S.C.A. § 301(a)).

VII. PLAINTIFFS FAIL TO STATE A CAUSE OF ACTION FOR DECEPTIVE

AND UNFAIR TRADE PRACTICES D UNDER 501.201, et seq., FLA.STAT.

Plaintiffs have failed to state a claim upon which relief may be granted pursuant

to §501.201, et seq., Fla.Stat., the Florida Deceptive and Unfair Trade Practices Act

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(“FDUTPA). That statute is intended to reach a broad spectrum of deceptive practices,

but does not include every individual and every business practice:

To state a cause of action under the DUTPA, the consumer must allege sufficient facts to show that the consumer has been actually aggrieved by the unfair or deceptive act committed by the seller in the course of trade or commerce.

Shibata v. Lim, 133 F. Supp. 2d 1311, 1317 (M.D. Fla. 2000). Thus, in order to state a

claim, Plaintiffs must allege that they are “consumers” engaged in “the course of trade or

commerce”. See, generally, Shibata v. Lim, 133 F. Supp. 2d 1311, 1317 (M.D. Fla. 2000)

(“Only ‘consumers’ have private rights of action under this section. Fla.Stat. §501.202”);

See, also, Sarkis v. Pafford Oil Co., Inc., 697 So. 2d 524, 528 (Fla. 1st DCA 1997) (“The

purpose of this statute is not merely to provide a remedy for an individual but to protect

consumers at large from unfair trade practices.”). Plaintiffs allege neither in their

Complaint.

Plaintiffs do not assert that they acted as ‘consumers”15 or that they were engaged

in any “trade or commerce”16 with the Defendants. FDUPTA therefore does not apply to

their claims because it is not-intended to reach transactions involving “non-consumers”:

15 Pursuant to § 501.203(7), Fla.Stat. “‘Consumer;’ means an individual; child, by and through its parent or legal guardian; business; firm; association; joint venture; partnership; estate; trust; business trust; syndicate; fiduciary; corporation; any commercial entity, however denominated; or any other group or combination.” 16 Pursuant to § 501.203(8), Fla.Stat. “‘Trade or commerce’ means the advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated. “Trade or commerce” shall include the

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The express purpose of FDUTPA is “[t]o protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.” Fla. Stat. §501.202(2); see also 501.202(3) (further defining purpose as “mak[ing] state consumer protection and enforcement consistent with established policies of federal law relating to consumer protection.”) (emphasis added). Section 501.211(2) provides that, “[i]n any action brought by a person who has suffered a loss as a result of a violation to this part, such person may recover actual damages[.]” (emphasis added). In 2001, the term “person” replaced the former term, “consumer,” and courts have not been clear as to whether this amendment expanded the statute to non-consumers. The Court looks to the legislative history and recent district court decisions to find that the term “person,” while broadening the scope of FDUTPA, still applies only to consumers. In Carroll v. Lowes Home Centers, Inc., 2014 WL 1928669 (S.D.Fla. May 6, 2014), the district court found that “the legislative history of the 2001 amendment indicates the Florida Legislature did not intend to expand the FDUTPA to non-consumers.” Id. at *3. Rather, “the purpose of the amendment was to clarify that remedies available to individuals under the FDUTPA are also available to businesses.”

Leon v. Tapas & Tintos, Inc., 51 F. Supp. 3d 1290, 1296 (S.D. Fla. 2014).

Plaintiffs claim that Defendants infringed certain rights in photographs which

depict the Plaintiffs. There are no allegations that the parties had a contractual agreement

with respect to the right of use or ownership of the photographs; or that they are

competing businesses in the same consumer market; or that they purchase or sold

anything in connection with those photographs or that any other individual did so. In

short, there is no consumer relationship between them at all. Accordingly, FDUPTA can

have no application.

conduct of any trade or commerce, however denominated, including any nonprofit or not-for-profit person or activity.”

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The inchoate nature of Plaintiffs’ rights in the subject photographs – assuming

that they have any rights in the photographs – illustrates by FDUPTA is such a poor fit

for this cause of action and why the copyright laws preempt the field. Numerous cases

have held that state law deceptive and unfair trade practices claims are preempted by

Federal copyright law where the property right in question are capable of being

copyrighted. The case of Issaenko v. Univ. of Minnesota, 57 F. Supp. 3d 985, 1022-24

(D. Minn. 2014) provides useful analysis of this issue as well as a collected of the

relevant precedent around the nation:

The Court concludes that the MUDTPA claim, as pled by Issaenko, is preempted by the Copyright Act. See Kodadek, 152 F.3d at 1212 (noting that for purposes of a preemption analysis the court does not analyze a cause of action in the abstract but instead “examine[s] the nature” of plaintiff’s claim “to discern what rights [plaintiff] seeks to enforce with state law”). The relevant question is whether Issaenko’s MUDTPA claim requires an extra element, in addition to the acts of reproduction or distribution that would support a claim for violation of the Copyright Act. See Nat’l Car Rental Sys., Inc., 991 F.2d at 431. Here, the allegations in the First Amended Complaint indicate that Issaenko’s MUDTPA claim is based solely on conduct that, if true, would result in violation of the Copyright Act. The conduct Issaenko alleges in support of her MUDTPA claim is Defendants’ use and distribution of the Copyrighted Works, which is equivalent to the exclusive rights protected by the Copyright Act. In other words, Issaenko’s claim is that Defendants used the Copyrighted Works without her permission. By doing so, she argues that they created confusion about the ownership of the work by claiming that the work was their own. This claim falls within the scope of the rights protected by the Copyright Act and is therefore preempted. See Gary Friedrich Enters., LLC v. Marvel Enters., Inc., 713 F.Supp.2d 215, 232 (S.D.N.Y.2010) (finding claims under the UDTPA preempted because “claims alleging misrepresentations of the ownership or origin of an idea do not differ from the inherent misrepresentations that accompany unauthorized copying and reproduction of another’s copyrighted work,” and “the core of plaintiffs’ statutory claims relate to the defendants’ alleged misuse of the plaintiffs’ property by misrepresentation of ownership or authorship” (internal quotation marks omitted)); Randolph v. Dimension Films, 630 F.Supp.2d

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741, 750 (S.D.Tex.2009) (concluding that a claim under the Texas DTPA was preempted because “the gravamen of the plaintiff’s complaint is the wrongful copying of her work and the distribution of the infringing work”). Issaenko attempts to distinguish her claim by arguing that it requires an additional showing of a misrepresentation and creation of confusion. These arguments are misplaced. MUDTPA specifically states that a plaintiff “need not prove ... actual confusion or misunderstanding.” Minn.Stat. §325D.44, subd. 2; see also Claybourne v. Imsland, 414 N.W.2d 449, 451 (Minn.Ct.App.1987) (“The Uniform Deceptive Trade Practices Act does not require actual confusion or misunderstanding for a violation to be found and relief granted. The mere likelihood of such confusion is sufficient.”). Instead, Issaenko’s claim that Defendants created confusion is based solely on her allegation that Defendants improperly used her Copyrighted Works…

See, also, Rutledge v. High Point Reg’l Health Sys., 558 F. Supp. 2d 611

(M.D.N.C. 2008) (Claim of “unauthorized use” in alleged violation of North

Carolina Unfair and Deceptive Trade Practices Act (UDTPA), which consisted of

nothing more than reproduction, distribution, and display of materials allegedly

protected under Copyright Act, did not provide separate element to avoid

Copyright Act preemption.)

VIII. PLAINTIFFS FAIL TO STATE A CAUSE OF ACTION FOR UNFAIR

TRADE COMPETITION UNDER THE COMMON LAW. The claim for unfair trade competition brought under the common law of Florida

is indistinguishable from the statutory claim brought under FDUPTA.

[A] claim for common law unfair competition based on infringement of a trade name or service mark. The elements of this claim are (1) that plaintiff is the prior user of the trade name or service mark, (2) that the trade name or service mark is arbitrary or suggestive, (3) that the defendant is using a confusingly similar trade name or service mark to identify similar services in competition with the plaintiff’s in the same trade area in which plaintiff has already established its trade name or

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service mark, and (4) that as a result of defendant’s action, or threatened action, consumer confusion as to source or sponsorship is likely.

Breakers of Palm Beach, Inc. v. Int’l Beach Hotel Dev., Inc., 824 F. Supp. 1576, 1586-87

(S.D. Fla. 1993); See, also, Suntree Techs., Inc. v. Ecosense Intern., Inc., 693 F.3d 1338,

1347-48 (11th Cir. 2012) (Setting forth elements for a “false designation of origin claim.

Plaintiffs fail to allege that they have any ownership interest in any trade name, service

mark or trade mark rights in the subject photographs.

Furthermore, a claim for unfair trade competition for use of a photographic image

(or other work of authorship fixed in a tangible medium) is among the claims which are

preempted by the Copyright Act. The analysis supporting this conclusion is exactly the

same engaged in with respect to state deceptive and unfair trade practices statutes:

In her unfair competition claim, Issaenko alleges that “Defendants’ actions have caused a likelihood of confusion and/or misunderstanding as to the source, sponsorship, approval, or certification of themselves and their images, publications, and activities with Dr. Olga Issaenko and her Copyrighted Images, publications, and activities,” and that “Defendants’ actions have created a high likelihood of confusion, mistake, and/or deception in the industry and among consumers… Defendants argue that this claim must be dismissed as duplicative of the MUDTPA claim and preempted by the Copyright Act. “Unfair competition is not a tort with specific elements; it describes a general category of torts which courts recognize for the protection of commercial interests” including “product disparagement,” “tortious interference with contractual interests and improper use of trade secrets.” Zimmerman Grp., Inc. v. Fairmont Foods of Minn., Inc., 882 F.Supp. 892, 895 (D.Minn.1994) (internal quotation marks omitted). “[T]o remain viable, a common law unfair competition claim ‘must identify the underlying tort which is the basis for the claim.’ ” LensCrafters, Inc. v. Vision World, Inc., 943 F.Supp. 1481, 1490 (D.Minn.1996) (alteration omitted) (quoting Zimmerman Grp., Inc., 882 F.Supp. at 895). Furthermore, where an unfair competition claim is duplicative of another claim in the complaint, the unfair competition claim should be dismissed. See Zimmerman Grp., Inc.,

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882 F.Supp. at 895 (explaining with respect to an unfair competition claim that “[t]o the extent that the claim is based upon interference with contract, it is duplicative of Count V which also asserts an interference with contract claim based upon the same conduct. As Zimmerman does not identify another tort upon which to base its unfair competition claim, this claim must be dismissed in its entirety.”). As with other state law claims, claims for unfair competition are preempted by the Copyright Act to the extent they are “based upon acts of copyright infringement.” Id.

Issaenko v. Univ. of Minnesota, 57 F. Supp. 3d 985, 1022-24 (D. Minn. 2014); See, also,

Urbont v. Sony Music Entm’t, 100 F. Supp. 3d 342, 355 (S.D.N.Y. 2015) (Audiovisual

recording used in conjunction with a cartoon fell within the Copyright Act so that state

law claim of unfair competition was preempted).

IX. PLAINTIFFS FAIL TO STATE A CAUSE OF ACTION FOR

DEFAMATION. As we true with respect to its civil theft claim, Plaintiffs’ claim for defamation

suffers from both procedural and substantive flaws.

A. Failure to Statutory Condition Precedent - Plaintiffs Failed to Give the Notice Required by §770.01, Fla.Stat.

Florida law has a strict statutory pre-suit notice requirement in defamation

actions:

770.01. Notice condition precedent to action or prosecution for libel or slander Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.

Florida Courts require strict compliance with the statutory notice requirements:

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With respect to appellants further argument concerning its compliance with the written notice requirement of Fla.Stat. 770.01 subsequent to filing suit and the unconstitutionality of said requirements, we find the language of the Florida Supreme Court in Ross v. Gore, 48 So.2d 412, to be fitting, i.e.:

‘As to plaintiff’s second question, he contends on this appeal that, even in the absence of notice and a retraction, his suit should not be dismissed, as it still valid for the recovery of actual damages; and that if the provision as to notice is construed to be a condition precedent to suit, such provision is unconstitutional. Neither of these contentions can be sustained’.

Aside from the aforementioned deficiency in appellants’ complaint an examination of appellants’ notice letter purportedly in compliance with F.S. 770.01 reveals same to be insufficient. The statute clearly and expressly requires the notice to specify the statements therein which plaintiff alleges to be false and defamatory. Although appellants’ notice specified the article there is no specification as to the statements therein alleged to be false and defamatory. (See special concurring opinion in Adams v. News-Journal Corporation, Sup.Ct.Fla.1955, 84 So.2d 549).

Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607, 610 (Fla. 4th DCA

1975); Opinion Corp. v. Roca Labs, Inc., 312 F.R.D. 663, 666 n. 4 (M.D. Fla. 2015)

(“Under Florida law, a demand for retraction of allegedly libelous material is a

prerequisite to an action for defamation.”).

Plaintiffs do not allege that they served the requisite notice on the Defendants nor

did they attach a copy of the notice to their Complaint. The Plaintiffs are cannot claim

that the notice was not necessary on the grounds that Defendants are not among the

“media’ defendants entitled to notice. Plaintiffs concede the point in their own pleading.

Indeed, that allegation is at the heart of their claim that Defendants made improper use of

their images:

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1. Defendants have pirated and altered the images, likeness and/or identity of Plaintiffs for purely self-serving commercial purposes – to advertise, promote and market Sinsations’ business interests on social media accounts owned, operated, hosted, or controlled by Defendants. (emphasis added).

See, Complaint at 1, ¶1. In any event, the statute is intended to be construed broadly so as

to encompass both traditional and new media. See, Comins v. Vanvoorhis, 135 So. 3d

545 (Fla. 5th DCA 2014) (Finding that notice requirement applied even to small on-line

blogs operated by a single blogger); Alvi Armani Med., Inc. v. Hennessey, 629 F. Supp.

2d 1302, 1308 (S.D. Fla. 2008) (Section 770.01 notice requirement applied to postings on

the Internet).

Without the required notice, or allegations, specifically, of same, the Plaintiffs

claims must be dismissed. A failure to comply with this pre-suit notice makes the

defamation case void ab initio. See, Orlando Sports Stadium, Inc. v. Sentinel Star Co.,

316 So. 2d 607 (Fla. 4th DCA 1975). This Court is obligated to dismiss Plaintiffs’

defamation claim for failure to state a cause of action:

Failure to comply with the notice provision of section 770.01 requires dismissal of the complaint for failure to state a cause of action. See Gifford v. Bruckner, 565 So.2d 887 (Fla. 2d DCA 1990); Davies v. Bossert, 449 So.2d 418 (Fla. 3d DCA 1984); Cummings v. Dawson, 444 So.2d 565 (Fla. 1st DCA 1984).

Mancini v. Personalized Air Conditioning & Heating, Inc., 702 So. 2d 1376, 1377 (Fla.

4th DCA 1997); Holt v. Tampa Bay Television, Inc., 34 Med. L. Rptr. 1540, 1542 (Fla.

Cir. Ct. Mar. 17, 2005), aff’d by 976 So.2d 1106 (Fla. 2d DCA 2007) (“A plaintiff’s

failure to satisfy a statutory condition precedent to suit prior to the expiration of the

statute of limitations requires dismissal of the complaint with prejudice.”)

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B. Plaintiffs Fail to Properly Allege the Publication of a Defamatory Statement.

The elements of a claim for defamation are as follows: “(1) publication; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) statement must be defamatory.” Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla .2008).

Internet Sols. Corp. v. Marshall, 39 So. 3d 1201, 1216 (Fla. 2010); See, also, Restatement

(Second) of Torts, §559; See, also, Don King Productions, Inc. v. Walt Disney Co., 40

So. 3d 40, 43 (Fla. 4th DCA 2010) (Listing elements). What is missing in the complaint

is an effective allegation that anything published by Defendants was actually defamatory.

The statements asserted by Plaintiffs to be defamatory are limited to the

implication that the Plaintiffs work for or are associated with the Defendants when the

truth is otherwise:

168. Defendants’ unauthorized use and publication of Hinton’s altered image, likeness and/or identity constituted false representations or statement by implication about Hinton’s affiliation with or employment by Sinsations, and her participation in or endorsement of the advertised activities at Sinsations.

See, Complaint at 29, ¶168.17

“Not every false statement is defamatory”. In re Grant, 12-33744, 2015 WL

1517778, at *13 (Bankr. N.D. Ohio 2015). Rather the untrue statement must subject the

plaintiff to ridicule or scorn:

17 The alterations to the photographs are alleged to be limited to statements allegedly showing the association between the Plaintiffs and the Defendants. There is nothing embarrassing or shameful about the photographs themselves.

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Libel per se may be defined as the false and unprivileged publication by letter, newspaper, or other form of writing, of unfounded statements or charges which expose a person to hatred, distrust, contempt, ridicule, or obloquy, or which tend to cause such person to be avoided, or which have a tendency to injure such person in his office, occupation, business, or employment, and which are such that in their natural and proximate consequence, will necessarily cause injury to the person concerned, in his , social, official, or business relations of so that legal injury may be presumed or implied from the bare fact of the publication itself. Briggs v. Brown, 55 Fla. 417, 46 So. 325.

Layne v. Tribune Co., 146 So. 234, 236 (Fla. 1933). Minor factual inconsistencies and

embellishments do not rise to the level of defamation. See, e.g., Smith v. Cuban

American Nat’l Foundation, 731 So.2d 702, 706 (Fla. 3d DCA 1999) (isolated and

cherry-picked errors or falsehoods will not sustain a cause of action for defamation).

Here, there is nothing about Defendants’ alleged statements – even if they are untrue –

which would injure the Plaintiffs’ reputation to the extent that they could recover on a

defamation claim.

The defamation claim also suffers from the same problem as all of the Plaintiffs’

other claims: they are preempted by the Copyright Act. See, Daboub v. Gibbons, 42 F.3d

285 (5th Cir. 1995) (State-law claims of plaintiff musical group which alleged that

defendant musical group unlawfully copied, distributed, and performed lyrics of

plaintiff’s song, including defamation, were equivalent to cause of action under

Copyright Act and were thus preempted by Act. 17 U.S.C.A. § 301(a)); See, also,

Alameda Films SA de CV v. Authors Rights Restoration Corp. Inc., 331 F.3d 472, 482

(5th Cir. 2003) (“[T]he 1976 Copyright Act preempts state common-law claims for …

defamation”).

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X. PLAINTIFFS FAIL TO STATE A CAUSE OF ACTION FOR UNJUST ENRICHMENT.

Plaintiffs have failed to state a cause of action for unjust enrichment.

To state a claim for unjust enrichment, a plaintiff must plead the following elements: 1) the plaintiff has conferred a benefit on the defendant; 2) the defendant has knowledge of the benefit; 3) the defendant has accepted or retained the benefit conferred; and 4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it.

Della Ratta, 927 So.2d at 1059; see also Hillman Constr. Corp. v. Wainer, 636 So.2d 576, 577 (Fla. 4th DCA 1994). “An action for ‘unjust enrichment’ exists to prevent the wrongful retention of a benefit, or the retention of money or property of another, in violation of good conscience and fundamental principles of justice or equity.” Henry M. Butler, Inc. v. Trizec Prop., Inc., 524 So.2d 710, 711 (Fla. 2d DCA 1988).

Golden v. Woodward, 15 So. 3d 664, 670 (Fla. 1st DCA 2009); See, also, Grove Isle

Ass’n, Inc. v. Grove Isle Associates, LLLP, 137 So. 3d 1081, 1094 (Fla. 3d DCA 2014).

Plaintiffs have failed to allege that they have conferred a benefit on the Defendant

and that Defendant was aware of the benefit, and that Defendant voluntarily accepted and

retained the benefit. Compare, Fito v. Attorney’s Title Ins. Fund, Inc., 83 So. 3d 755 (Fla.

3d DCA 2011) (Title insurer failed to establish that it conferred a benefit on individual);

Am. Safety Ins. Serv., Inc. v. Griggs, 959 So. 2d 322, 331 (Fla. 5th DCA 2007) (“The

plaintiffs must show they directly conferred a benefit on the defendants.).

A claim of unjust enrichment associated with wrongful use of a photographic

image (or other work of authorship fixed in a tangible medium) is among the claims

which are preempted by the Copyright Act. See, generally, I.C. ex rel. Solovsky v. Delta

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Galil USA, 135 F. Supp. 3d 196 (S.D.N.Y. 2015) (State law claims associated with a T-

Shirt design were found to be preempted: “Defendants argue that plaintiff’s state law

claims for unjust enrichment and quantum meruit are simply recast claims for copyright

infringement, and must be dismissed because they are preempted by the Copyright Act.

The Court agrees.”).

X. PLAINTIFFS FAIL TO STATE A CAUSE OF ACTION FOR

FRAUDULENT MISREPRESENTATION. Plaintiffs have failed to state a claim upon which relief may be granted for

fraudulent misrepresentation. The elements of claims for fraudulent misrepresentation

are:

1) Defendant made a false statement regarding a material fact;

2) Defendant knew or should have known the representation was false;

3) Defendant intended that the representation induce plaintiff to act on it; and

4) Plaintiff suffered damages acting in reliance on the representation.

See, Johnson v. Davis, 480 So. 2d 625 (Fla. 1985), and Beself v. Basnelf, 389 So. 2d 995

(Fla. 1980). Based on the factual scenario set forth in the plain language of the

Complaint, there are simply no supportable allegations, not could there ever be any proof,

that: (a) Defendants made any “ false statement” regarding a material fact in the alleged

use of the Plaintiffs’ photographs to “promote” their clubs; or (b) Defendants knew or

should have known the “ statement” regarding a material fact in the alleged use of the

Plaintiffs’ photographs to “promote” their clubs were “ false”; or (c) Defendants intended

that the “statement” regarding a material fact in the alleged use of the Plaintiffs’

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photographs to “promote” their clubs were “published” to induce Plaintiff to act on ant

such “statements,”; or (d) Plaintiffs suffered damages acting in reliance on any “false

statement” regarding a material fact in the alleged use of the Plaintiffs’ photographs to

“promote” their clubs.

In terms of preemption, this Count is subject to the Copyright Act for the same

reason that Plaintiffs’ defamation Count does. See, Daboub v. Gibbons, 42 F.3d 285 (5th

Cir. 1995); See, also, Alameda Films SA de CV v. Authors Rights Restoration Corp. Inc.,

331 F.3d 472, 482 (5th Cir. 2003).

XIII. PLAINTIFFS FAIL TO STATE A CAUSE OF ACTION FOR NEGLIGENCE The Plaintiffs attempt to state a claim for the negligence misappropriation of the

subject photographs. There is no such cause of action of action in Florida. Instead, that

claim is subsumed under principles of copyright law (and therefore preempted to the

Federal Courts) or defamation law (and therefore subject to dismissal under the single

action rule).

In addition, it is apparent from the face of the Complaint that the Plaintiffs do not

adequately allege a legal duty to take action or refrain from taking any action with respect

to the subject photographs. See, generally, Florida Dept. of Corr. v. Abril, 969 So. 2d

201, 204-05 (Fla. 2007) (“To maintain an action for negligence, a plaintiff must establish

that the defendant owed a duty, that the defendant breached that duty, and that this breach

caused the plaintiff damages. See Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 573

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(Fla.2001). This Court has held that while breach, causation, and damages are ordinarily

questions for the jury, “duty exists as a matter of law and is not a factual question for the

jury to decide.”).

VI. DISMISSAL AS TO MILTON R. HOWARD.

The Complaint does not allege that Defendant Milton R. Howard undertook any

act which caused the Plaintiffs any harm nor is alleged to have refrained from any legal

duty which led to any injury. In particular, the Plaintiffs do not allege that Mr. Howard

personally took their photographs, or altered their photographs, or published their image,

or profited from the Plaintiffs personal likeness. There is only a single allegation in the

Complaint concerning Mr. Howard:

Based on publicly available records, and further upon information and belief, Defendant Howard is the principal of MHHS-Sinsations, LLC, and in that capacity maintains control over Sinsations, including all advertising relating thereto.

See, Complaint at 5, ¶23.

It is obvious that Mr. Howard has been sued only because he is the “principal” of

the limited liability company and not because of any action attributable to him in his

individual capacity. Instead, all of the allegations of the Complaint are directed to actions

taken by MHHS-Sinsations, LLC.

“A general principle of corporate law is that a corporation is a separate legal

entity, distinct from the persons comprising them.” Gasparini v. Pordomingo, 972 So. 2d

1053, 1055 (Fla. 3d DCA 2008). Mr. Howard cannot be held liable in his individual

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capacity merely because he is associated with a corporate entity. Dania Jai-Alai Palace,

Inc. v. Sykes, 450 So. 2d 1114 (Fla. 1984) is the controlling authority on this point:

The corporate veil will not be penetrated either at law or in equity unless it is shown that the corporation was organized or employed to mislead creditors or to work a fraud upon them. Every corporation is organized as a business organization to create a legal entity that can do business in its own right and on its own credit as distinguished from the credit and assets of its individual stockholders. The mere fact that one or two individuals own and control the stock structure of a corporation does not lead inevitably to the conclusion that the corporate entity is a fraud or that it is necessarily the alter ego of its stockholders to the extent that the debts of the corporation should be imposed upon them personally. If this were the rule, it would completely destroy the corporate entity as a method of doing business and it would ignore the historical justification for the corporate enterprise system.

[Advertects, Inc. v. Sawyer Industries, Inc., 84 So.2d 21, 23-24 (Fla.1955)] In Roberts’ Fish Farm v. Spencer, 153 So.2d 718 (Fla.1963), we held that the Florida Industrial Commission did not have jurisdiction to pierce the corporate veil….:

The corporate entity is an accepted, well used and highly regarded form of organization in the economic life of our state and nation. As we said in State ex rel. Continental Distilling Sales Co. v. Vocelle, 1946, 158 Fla. 100, 27 So.2d 728, “Their purpose is generally to limit liability and serve a business convenience.” Those who utilize the laws of this state in order to do business in the corporate form have every right to rely on the rules of law which protect them against personal liability unless it be shown that the corporation is formed or used for some illegal, fraudulent or other unjust purpose which justifies piercing of the corporate veil. This is the reason for the rule, stated in all Florida cases, that the courts are reluctant to pierce the

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corporate veil and will do so only in a court of competent jurisdiction, after notice to and full opportunity to be heard by all parties, and upon showing of cause which necessitates the corporate entity being disregarded in order to prevent some injustice.

Id. at 721.

Dania Jai-Alai Palace, 450 So. 2d at 1120-21; See, also, Gasparini v. Pordomingo, 972

So. 2d 1053, 1055 (Fla. 3d DCA 2008) (“Moreover, the mere fact that Gasparini is a

stockholder and officer of International Trading does not, without more, create personal

liability. The law is clear that the mere ownership of a corporation by a few shareholders,

or even one shareholder, is an insufficient reason to pierce the corporate veil.”); Houri v.

Boaziz, So.3d , 2016 WL 937675 (Fla. 3d DCA Mar. 9, 2016) (Quoting Gasparini

for the same proposition).

There is no basis to hold Mr. Howard liable for the alleged wrongdoing of his

corporation, unless the Plaintiffs plead facts which show that the corporation was a mere

shell or instrumentality used for an improper purpose:

To “pierce the corporate veil” three factors must be proven:

(1) the shareholder dominated and controlled the corporation to such an extent that the corporation’s independent existence, was in fact non-existent and the shareholders were in fact alter egos of the corporation; (2) the corporate form must have been used fraudulently or for an improper purpose; and (3) the fraudulent or improper use of the corporate form caused injury to the claimant. (citations omitted)

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Gasparini 972 So.2d at 1055. Obviously, the Plaintiffs’ bare allegation that Mr. Howard

is the ‘principal” of the limited liability company, are not sufficient to sustain a claim of

this kind. Accordingly, Mr. Howard is due to be dismissed from all counts of the

Complaint.18

VII. DISMISSAL FOR IMPROPER CLAIMS OF PUNITIVE DAMAGES.

The Complaint is riddled with references to the Plaintiffs’ right to claim punitive

damages. Each of Plaintiffs’ multitudinous counts include the following language

(changing on the individual name of each claimant):

Defendants’ conduct has been despicable and taken in conscious disregard for Hinton’s rights Accordingly, Hinton is entitled to an award of punitive damages against Defendants in an amount sufficient to punish and make an example of Defendants.

Complaint at 19, ¶106

As a result, Hinton has suffered compensatory, punitive and exemplary damages to be determined according to proof at trial; but Hinton alleges that the same are within the jurisdiction of the Court”

Complaint at 23, ¶137.

Most of Plaintiffs’ ad damnum clauses includes a prayer for the award of

exemplary and punitive damages:

“WHEREFORE, Hinton respectfully requests that the Court issue a judgment against Defendants for all remedies available… both actual loss and damages, punitive damages according to proof….”);

18 The allegations in this instance are so deficient that the Court should consider sanctions under §57.015 for the filing of a frivolous pleading. See, § 57.105(1), Fla. Stat. (“Upon the court's initiative…., the court shall award a reasonable attorney's fee… on any [frivolous] claim or defense…”).

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Complaint at 19.

The Plaintiffs have not followed the procedure specified in §768.72, Fla.Stat. for

asserting punitive damages. That statute requires that the claimant apply to the Court for

permission to assert punitive damages and that an amended complaint be filed only after

the permission is secured:

768.72. Pleading in civil actions; claim for punitive damages (1) In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure….

This procedure is mandatory in every case where punitive damages may be claimed.

Where the procedure is not followed, the Complaint is subject to dismissal:

In this case, the plaintiffs did not comply with the procedures of this section. We agree with Judge Peterson’s dissent that to comply with the statute’s requirements, a plaintiff must obtain leave from the trial court to amend the complaint before punitive damages may be asserted. At that point, the trial court must make a determination that there is a reasonable basis for the recovery of punitive damages. Simeon, 655 So.2d at 159 (Peterson, J., dissenting); see also Kraft General Foods, 635 So.2d at 110. It was inconsequential that the trial court in this case subsequently held a hearing on the motions to dismiss and to strike: any punitive damages claim alleged prior to a party asking for and receiving leave of the court must be dismissed or stricken. See id.

Simeon, Inc. v. Cox, 671 So. 2d 158, 160 (Fla. 1996); See, also, Stephanos v. Paine, 727

So. 2d 1075, 1075-76 (Fla. 4th DCA 1999) (“[A plaintiff must obtain leave from the trial

court to amend the complaint before punitive damages may be asserted. At that point, the

trial court must make a determination that there is a reasonable basis for the recovery of

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punitive damages.”); Horizons Rehab., Inc. v. Health Care And Ret. Corp., 810 So. 2d

958, 963 (Fla. 5th DCA 2002) (“The court struck the punitive damages claim… because

it found that such claims are not permitted without prior trial court authorization,

pursuant to § 768.72… We find no error with these rulings.”).

Plaintiffs’ Complaint must be dismissed for failure to comply with the

requirements of §768.72, Fla.Stat. In the alternative, all references to punitive damages

must be stricken from the Complaint until such time as Plaintiffs follow the statutory

procedures and prove their entitlement to assert such claims.

WHEREFORE, Defendants move that the Plaintiffs’ Complaint be dismissed with

prejudice as to all actions asserted therein.

I HEREBY CERTIFY that a true and correct copy of the foregoing Motion has

been furnished to SARAH M. CABARCAS, Esquire [[email protected]],

Brickell Bayview Center, 80 S.W. 8th Street, Suite 2000, Miami, Florida 33130, by E-

Mail this 13th day of May, 2016.

BENJAMIN, AARONSON, EDINGER & PATANZO, P.A. /s/ Gary S. Edinger GARY S. EDINGER, Esquire Florida Bar No.: 0606812 305 N.E. 1st Street Gainesville, Florida 32601 (352) 338-4440/ 337-0696 (Fax) [email protected] Attorneys for Defendants

motions to dismiss for lack of subject matter, …

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