LOS ANGELES—Many adult performers—mostly women, but even a few men—have had the unhappy experience that once they become known among porn-watching fans, their photos begin to show up in ads on websites and in giveaway tabloids supposedly offering themselves for "dating" or "escort" or "massage" services. While such ads used to be rife in the pages of the LA Weekly and LA Xpress, they've now pretty much disappeared from these local publications—though not necessarily from similar venues around the country—as porn stars have become more aware of the value of their endorsements and more concerned about managing their images.
So imagine the shock that veteran performer Vicky Vette must have felt when she found her photo—identified as "Groovy232"—in an AdultFriendFinder (or, technically, a Various, Inc.) online dating ad, claiming that she was one of the "hot girls" by whom subscribers could "get laid... near Studio City [CA]" or whatever locale an unwary subscriber logged in from.
In any case, Vette, through her production company FM Financial, sued AdultFriendFinder (aka Various, Inc.) as well as Video Bliss, the company that now owns Danni's Hard Drive and Danni.com, and 50 "John Doe" defendants for unauthorized use of her image in the ads and other causes of action related to that unauthorized use.
"Plaintiff, Vicky Vette, is one of the most famous adult actresses in the United States," reads one of the allegations in the complaint filed by her attorney, Michael Kernan. "Her name, face, image and person are instantly recognizable to consumers in ther adult industry and have acquired a distinct secondary meaning. Through FM Financial's hard work and use of its talent, investment and promotion in the field of entertainment, Vicky Vette's name, image and likeness in movies, personal appearances and her web site have become very valuable and are invested with substantial goodwill in the eyes of the public."
"Defendants, and each of them, have misappropriated Vette's likeness by stating and implying that Ms. Vette is a member of Defendant Adultfriendfinder's site, such that users may be able to meet Ms. Vette through membership in Defendant Adultfriendfinder's site," the complaint continues.
Then, after noting that AdultFriendFinder has an affiliate program "in which one or more pictures of Vette was [sic] added without Plaintiff's knowledge or permission," the complaint charges that, "Said affiliate program is designed to mislead the general public into thinking that Vette is somehow signed up to AdultFriendFinder in their area under the website handle of 'Groovy232 21/F,' or other handles. Vette is not 21 years old, has never signed up to AdultFriendFinder and at no time gave permission to Defendants to use her name and likeness worldwide through affiliate webmasters to trick potential customers or members of the general public into thinking that she is available for 'dates' in their city, county or state, including Los Angeles, California." It further charges that AdultFriendFinder "is engaging in fraudulent and deceitful advertising and/or business practices."
Specifically, Vette and FM are seeking relief under California Civil Code Sec. 3344, which prohibits the "unauthorized commercial use of [a person's] name, voice, signature, photography or likeness" as well as California's common-law "right of publicity," whose legality has been upheld by the U.S. Supreme Court. Vette also charges violations of the California Business & Professions Code §17200 for the defendants' alleged "unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading advertising," and that the defendants have conspired with each other to engage in the commercial misappropriation.
Referring specifically to Video Bliss, the current owner of Danni's Hard Drive and Danni.com (and according to the Answer to the complaint, itself owned by FriendFinder Networks, Inc., as is Various, Inc.), the complaint charges that its then-employee, photographer Francisco Guerra, assured Vette that the photographs that Vette agreed to allow Guerra to take of her back in 2006 "would not be used for other purposes" than a film then entitled Vicky Vette Photo Shoots. Vette charges that the Danni's defendants "intended to license out Vette's likeness to third parties unrelated to Danni's," and that she was deceived into thinking otherwise, or in the alternative that they negligently allowed such unauthorized use to occur.
Vette/FM are seeking unspecified damages to be determined at trial based on the evidence presented, and Vette even offers to give back her modeling fee if Danni's agrees to "pay over to Plaintiff the full amount of monies due for the improper use of Plaintiff's likeness." However, under the law, since the suit was filed as a "limited civil case," it appears that Vette's damages cannot exceed $25,000 plus interest and attorney fees.
According to an informed source, Vette and Various were on the verge of a settlement at one point since the complaint was filed on June 8, 2011, but for unknown reasons the discussions fell through, and on September 21, attorney Ira Rothken filed an Answer to the complaint on behalf of Various, Inc..
At first, Rothken moved to dismiss the original complaint for, among other reasons, the fact that the only named plaintiff in that first complaint was FM Financial, and Rothken argued that FM had no standing to sue on behalf of Vette. He also argued that FM was a Georgia corporation and had no standing to sue in a California court. However, an amended complaint was later filed that included Vette as a plaintiff, along with allegations that her photo had appeared in AdultFriendFinder ads that could be seen in Los Angeles, and the suit continued.
Rothken, on behalf of Various, made several other "affirmative defense" claims, including that FM's/Vette's complaint "fails to state facts sufficient to constitute a cause of action"; that Vette had signed a model release which precluded the lawsuit; that the suit is barred by the Statute of Limitations; that "equitable relief is not available under the alleged facts and under the facts as will be proved" and "because there is an adequate remedy at law"; that Vette had suffered no damages as a result of Various's actions, but that if she had suffered injury, such injury was caused by later or intervening events not caused by Various, or by third party actions also not caused or controlled by Various; that Vette's injuries, if there were any, were caused by herself; that FM's/Vette's complaint is preempted by state and/or federal law, notably copyright laws, trademark laws, the Lanham Act and the First Amendment; and that it's actually Various that was damaged because Vette "breached her duties and obligations under the Vette [Model] Release."
Indeed, Rothken attached a copy of a "Work for Hire Agreement, Assignment of Rights and Release" signed by Vette, dated April 27, 2006, for services performed on that date—except that, according to Vette, that wasn't the day the photo labeled "Groovy 232" was shot. When that discrepency was called to the court's attention, Rothken supplemented his pleadings with a "Declaration" signed by photographer Francisco Guerra, who stated that the "Groovy 232" photo had been selected for the AdultFriendFinder ad from Danni's photo library by a graphic designer on his production team, and that Guerra himself had shot that photo of Vette at her Beverly Hills apartment on July 11, 2006. Attached to the Declaration were two model releases from 2006, one dated July 11 (but signed by Vette on July 10), the other dated April 27—neither of which being the date upon which Vette claims the shoot in question took place.
The July model release states that the project for which Vette was hired was "tentatively entitled Vicki Vette Photo Shoot and/or otherwise," while the April release more generically "tenatively" titles that shoot "Photo-Video Day and/or otherwise."
Both releases contain the following language: "Consent. Performer expressly consents and agrees that Producer, and all other parties contracted by or otherwise deriving authority from the Producer may film, videotape, record, photograph, digitally sample, and otherwise fix in any and all tangible media of expression now known or hereinafter invented all Services rendered hereunder, including without limitation all performances, poses and all associated information, including Performer's image, likeness, voice, bodily sounds and other characteristics of Performer's persona and personality. Performer expressly consents to all such fixations of Performer clothed, partially clothed, costumed, and fully nude."
The releases also include "Work For Hire" provisions stating in part that "all rights, title and interest in and to Works and Derivative works made therefrom... shall be solely and exclusively owned by Producer, and Performer shall neither have, nor claim any rights, title or interest therein," as well as an "Assignment Of Other Rights," which states in part that "Performer hereby expressly and irrevocably grants and conveys to Producer in perpetuity, all other rights and interests of every kind, including without limitation, all intellectual property rights, all digital actor and all future-created rights of every kind in the Works and in all Derivative Works made therefrom."
Moreover, the term "Derivative Works" is defined in the model releases as "all compilations, derivations, modifications, alterations, synthetic creations, synthespian creations, recreations, alterations, enhancements, superimpositions, recombinations and distortions of the Works and/or derivative works thereof."
The question before the court, of course—assuming that either of those model releases was actually executed on the date the "Groovy 232" photo was shot—will be whether those portions of the pertinent model release would have allowed Danni's to provide Vette's image to Various to be placed in AdultFriendFinder ads, which ads arguably do not fit the definitions of a "Derivative Work" as a compilation, modification, alteration or any of that paragraph's other terms. The fact is, Vette does not escort, yet the ads clearly state that she is available for AFF subscribers to "get laid" in various communities around the country, if not around the world—a claim that Vette could easily believe has and would harm her reputation—and yes, even porn stars have reputations that can be harmed.
The latest entry in the extensive court docket occurred just one week ago, on March 29, when LA Superior Court Judge Jan G. Levine denied Various, Inc.'s various motions for summary judgment in the case, as well as Rothken's attempt to have FM Financial dismissed as a plaintiff.
"With respect to causes of action one through four in the first amended complaint, the claims stated against moving defendant Various, Inc., the Court denies summary judgment," Judge Levine wrote in her Order. "There are numerous triable issues of material fact including but not limited to whether or not defendant had exclusive rights to use Plaintiff's image, and... what if any damages should be awarded. For example, the question whether the terms of the [contract] signed on 07/10/06 (by one party only) but its terms seeming to cover only photos shot on 07/11/06 govern use of a photo agreed by all to have been shot on 07/10/06 is a classic question for a trier of fact."
In the order, Judge Levine also sets May 16 as the date for either a status conference or to set a trial date—and also sets that date as a deadline for someone to show cause why the claims against Video Bliss should not result in a default judgment for Vette.
As a result of the March 29 ruling, Vette issued a press release, saying in part, "I'm thrilled we won this significant ruling and that AdultFriendFinder can't use model releases to get the case dismissed. I shot for Danni.com to be their Girl of the Month, not to be used as bait in AdultFriendFinder. No, I'm NOT Groovy232, and no, I am not in El Paso, Tucson, Santa Clarita or anywhere else seeking a casual fling in your neighborhood. It is outrageous that AdultFriendFinder can think it's ok to use my image without even letting me know. I think it's a scam on me and the general public. I am not sure where this ranks in the 'annals' of jurisprudence but I am happy with the result in court. I know of at least three other girls in the business they are doing the exact same thing to, including Bibi Jones, Carmen Valentina and Gisele. I had nothing but respect for Danni and Penthouse, which is owned by AdultFriendFinder, so I am a bit stunned they would treat adult stars this way. They should pay girls if they are going to put them in advertising saying things like 'Gets Double Teamed.' You'd think someone would have called me saying, 'Hey, do you mind if we put you on thousands of worldwide websites saying you are looking for a 'date'?' I can't wait for my day in court and [I] thank the judge for giving it to me."