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Lopez v. Admiral Theatre, Inc.

United States District Court, N.D. Illinois, Eastern Division

September 26, 2019

ARIANNY CELESTE LOPEZ, CAMILA DAVALOS, CIELO JEAN GIBSON, DENISE MILANI a/k/a DENISE TRLICA, HILLARY HEPNER, JAIME EDMONDSON-LONGORIA, KRYSTAL HIPWELL, and LINA POSADA, Plaintiffs,
v.
ADMIRAL THEATRE, INC. d/b/a ADMIRAL THEATRE, Defendant.

          MEMORANDUM OPINION AND ORDER

          Matthew F. Kennelly, District Judge.

         Defendant Admiral Theatre, Inc. has moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the claims of plaintiffs Arianny Celeste Lopez, Camila Davalos, Cielo Jean Gibson, Denise Milani (also known as Denise Trlica), Hillary Hepner, Jaime Edmondson-Longoria ("Longoria"), Krystal Hipwell, and Lina Posada for failure to state a claim. In considering the motion, the Court takes the plaintiffs' factual allegations as true and assesses whether they have asserted a plausible basis for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Background

         The plaintiffs are eight professional models. Each earns a living by selling her images to be used in advertisements, endorsements, and promotions of products and services. To establish and maintain their careers in the modeling industry, and to protect their reputations, the plaintiffs are selective regarding the companies and brands for which they model.

         Admiral Theatre operates a strip club in Chicago where it sells alcohol and entertains patrons with nude and/or semi-nude women. Admiral Theatre advertises and promotes its business, events, and services using Facebook, Instagram, and other social media platforms.

         The plaintiffs allege that Admiral Theatre published their images in posts to its social media accounts without their consent or knowledge and without compensating them. These posts, plaintiffs allege, falsely suggest to the public that the plaintiffs promote, endorse, or have an affiliation with Admiral Theatre. The plaintiffs have not agreed, and claim that they would never agree, to Admiral Theatre's use of their images.

         Specifically, plaintiffs allege that Admiral Theatre posted photographs of Davalos, Gibson, Milani, Hipwell, and Posada to its Facebook page on or about February 9, 2018, February 11, 2016, July 8, 2016, July 20, 2016, and April 12, 2016, respectively. It posted a photograph of Lopez to its Facebook and Instagram pages on or about May 30, 2016. It posted photographs of Hepner to its Facebook page on or about February 6, 2016 and February 4, 2018. Those photographs included text regarding a Super Bowl viewing party with "totally nude girls" and a "private suite with a beautiful showgirl, " and the date printed across the top of the image in the latter photograph was changed from "Feb. 7" to "Feb. 4." Finally, Admiral Theatre posted four photographs of Longoria, on or about August 11, 2016, September 11, 2016, February 1, 2016, and January 15, 2017.

         Admiral Theatre never removed any of the plaintiffs' photographs from its social media pages. Some, but not all, of the posts contained captions describing events at or promotions offered by Admiral Theatre.

         The plaintiffs assert claims against Admiral Theatre under the Lanham Act, 15 U.S.C. § 1125(a), for false advertising and false endorsement; under the Illinois Right of Publicity Act, 765 ILCS 1075/10, for violations of the right to publicity; for invasions of privacy by placing them in a false light; and for negligence and respondeat superior.

         At a status hearing on May 21, 2019, the Court issued an oral ruling denying Admiral Theatre's motion to dismiss as to the Lanham Act claims. This order addresses the motion to dismiss with respect to the other claims.

         Discussion

         A. Illinois Right of Publicity Act

         Plaintiffs allege that Admiral Theatre violated the Illinois Right of Publicity Act (IRPA), which prohibits the use of an individual's identity for commercial purposes without her written consent. 765 ILCS 1075/30. Admiral Theatre moves to dismiss the IRPA claims of every plaintiff except Davalos based on the statute of limitations and moves to dismiss Davalos' claim as insufficiently pled.

         1. Statute ...


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