INTRODUCTION

Vondran Legal® News: We have recently filed suit in the Los Angeles Superior Court against the South Coast Botanic Garden Foundation. Amazingly, they used photographs of two Defendants (who are working professionals who value their privacy) and used them in a series of advertisements in a local mall. When confronted with the unauthorized usages of the image and likeness of Plaintiffs, they were not willing to entertain any settlement offers, and instead appear to want to litigate the case. We will keep you posted on the progress of this case where we seek damages, costs and attorney fees under California's common law and statutory right of publicity.

ALLEGATIONS IN THE LAWSUIT

You can view a redacted copy of the lawsuit here.

Here are the main allegations:

1. Plaintiff's are two hard working professionals that value their privacy.

2. On or around 11/27/23 Plaintiff's learned through a third-party that their images were being used in the Del Amo mall on multiple (7 or more) large billboard-type advertising placards for advertising Defendant's Botanical Gardens.

3. Defendants charge for admission into their Botanical Garden, and sell memberships going as high as $25,000 per year.

4. Defendant makes millions of dollars per year, and has an adequate budget to pay for models and other persons to be used in their commercial advertisements, and have substantial funds available to pay for legal counsultation services.

5. Defendants did not seek, nor did they have Plaintiff's authorization to (a) take their photographs without their knowledge, and (b) blast them onto large advertising and marketing placards distributed widely throughout the mall and potentially other areas without their consent or permission.

6. Thus, Defendants have intentionally and willfully violated Plaintiffs respective rights of publicity and invaded their privacy for commercial purposes in violation of California law.

First Cause of Action

(Right of Publicity – California Common Law - Against all Defendants)

1. Plaintiffs hereby incorporate each and every allegation in the above paragraphs 1-14 above, and re-alleges them herein.

2. Defendant have misappropriated Plaintiffs' name, image, and likeness (“NIL”) without Plaintiff's express or verbal consent and against his express wishes.

3. Defendant has invaded Plaintiffs' privacy without consent or permission for commercial marketing and advertising for their company which generates substantial monthly and annual profits.

4. Plaintiffs' have the sole right to determine how to market and exploit commercially their own name, image, identity and likeness, or, to maintain their total privacy from such activities, which is their desire. Defendant's have breached this right exposing Plaintiffs publicly.

5. Defendants setup multiple placards – at a minimum seven – at various locations at the mall, and possibly elsewhere.

6. Defendants had no legal right to do this, and their unmlawful conduct has caused damages to Plaintiffs in an amount to be proven at trial.

7. Plaintiff's seek damages for commercial use of their NIL, including damages for invasion of privacy, disgorgement of ill-gotten gains and for an accounting of profits, losses to Plaintiffs' reputation and goodwill, along with punitive damages under California Civil Code Section 3294 for intentionally and maliciously invading their rights without legal justification.

Second Cause of Action

(Right of Publicity – California Civil Code Section 3344 – Against all Defendants)

8. Plaintiffs hereby incorporate each and every allegation in the above paragraphs 1-21 above, and re-alleges them herein.

9. The above acts also constitute a violation of California Civil Code Section 3344 and entitle Plaintiff to the same relief and remedies set forth above.

10. Defendants used Plaintiff name, image, identity and likeness in their advertisements which sought to directly promote Defendants own business, and which, on information and belief generated substantial profits for Defendants.

11. This misappropriation of NIL could not have been accidental, as the images had to be taken, sorted through, edited, and sent to a print shop for creation of the large placard advertisement. It is beyond belief that anyone could do such a think without any regard for the privacy rights of Plaintiffs'. Plaintiff's allege this is malicious and oppressive.

12. WHEREFORE, in addition to the damages sough above, Plaintiff seeks their reasonable attorney fees and costs under the statute.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against Defendants as follows:

a. For compensatory damages suffered by Plaintiff in an amount to be proven at trial in an amount no less than $250,000 and for costs of corrective ads and retractions.

b. For costs of the action;

c. For statutory damages under Cal. Civil Code section 3344 (which remedies are “cumulative” to any other remedies provided by law);

d. For pre-judgment interest and post-judgment interest;

e. For reasonable attorney fees incurred herein under Cal. Civ. Code 3344;

f. For punitive damages in an amount sufficient to punish Defendants from doing this again to unsuspecting and unconsenting individuals;

g. For an Accounting of Defendant's profits and to disgorge all ill-gotten gains;

h. For such other and further relief as this Court deems just and proper;

i. Plaintiffs demand a jury trial