unauthorized sale of model's photos leads to internally inconsistent TM/ROP ruling

Passelaigue v. Getty Images (US), Inc., 2018 WL 1156011, No. 16-CV-1362 (S.D.N.Y. Mar. 1, 2018)Elodie Passelaigue is a professional fashion model who sued under the Lanham Act, Washington state law, and New York law against Getty, Bill Diodato Photography, and Bill Diodato (no stranger to IP litigation) for unlawfully licensing and selling images of her that were eventually used to advertise synthetic beauty products. The court dismissed some claims but allowed others to continue.As part of one advertising campaign in early 2004, Clinique arranged for a test photo shoot in New York, and hired Diodato to take the photos. After the test shoot, Diodato allegedly “asked Ms. Passelaigue if he could use photos from the test shoot for his portfolio and professional website simply as an example of his work.” He allegedly “showed her a form document titled ‘Model Release,’ representing to Ms. Passelaigue that if she was willing to allow him to use the…

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