Fashion Models Sue Former Employer for Likeness Rights, Unjust Enrichment

Dolce_&_Gabbana_(8184624219).jpgA former fashion model has filed suit against a major designer for alleged misappropriation of his likeness, claiming that it reused photographs taken of him more than a decade ago without his consent. Hamideh v. Dolce & Gabbana S.r.L., et al, No. BC502164, complaint (Cal. Super. Ct., Los Angeles Co., Mar. 4, 2013). In addition to the intellectual property claims, the plaintiff is asserting a claim related to breach of contract, seeking restitution for commercial benefits the defendant allegedly received from the use of his pictures. The case resembles situations faced by employees who contribute intellectual property to an employer, and who may continue to have rights to that intellectual property even after their employment ends.

According to the plaintiff’s complaint, Dolce & Gabbana (D&G), an Italian company known for high-end fashion, hired the plaintiff in 2002 for an advertising campaign. He was the featured male model of the campaign, appearing alongside world-famous female model Giselle Bundchen. D&G’s rights to the plaintiff’s likeness allegedly expired at the end of 2003. The plaintiff alleges that, in May 2012, D&G published photos of him taken for the campaign in 2002 without his permission. He claims that D&G did so “for the purpose of advertising [its] products and promoting [its] brand.” Hamideh, complaint at 4.

The plaintiff in Hamideh was also involved in an earlier lawsuit asserting similar causes of action, and he alleges that D&G acted in retaliation for the earlier suit. Id.; Monzon v. Dolce & Gabbana S.r.L., et al, No. 2:12-cv-04881, notice of removal (C.D. Cal., Jun. 4, 2012), originally filed as No. BC482160, complaint (Cal. Sup. Ct., Los Angeles Co., Apr. 5, 2012). The plaintiff in that suit, Christian Monzon, is also a male fashion model who has appeared in “worldwide advertising campaigns.” Monzon, complaint at 3. He claimed that D&G used his likeness without his consent after December 31, 2011 as part of an advertising campaign for a fragrance product. D&G removed the case to federal court. The parties reached an undisclosed settlement and dismissed the lawsuit in December 2012.

Both lawsuits assert causes of action for common law misappropriation of likeness rights, state law violations, and unjust enrichment. The final cause of action can apply to many situations faced by employees who create or contribute to creative works for an employer. It addresses the right of an employee to benefit from the use or display of their own intellectual property, which may include much more than just modeling photographs. Employees may retain rights to the works they create, but those rights depend heavily on the circumstances of employment.

The key to determining an employee’s rights in such situations is in the employment contract or agreement. Many employment contracts treat any creative work produced by an employee during the term of employment, and in the context of the employee’s duties, as a “work for hire.” The employer retains all rights to a work for hire, and the employee is only entitled to regular compensation. The Hamideh and Monzon cases, however, both appear to rely on contractual provisions that identify a specific date after which D&G, as the employer, is no longer entitled to use the employee’s likeness without consent.

The employment attorneys at the Resnick Law Group represent current and former employees in legal matters involving employment contracts, discrimination and others issues in New Jersey and New York. Contact us today online, at 973-781-1204, or at 646-867-7997 to see how we may assist you.

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Photo credit: By Eva Rinaldi from Sydney Australia (Dolce & GabbanaUploaded by russavia) [CC-BY-SA-2.0], via Wikimedia Commons.

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