The club owners had denied the allegations but agreed to monetary judgments being entered against them along with confidentiality agreements in which they assigned all of their claims against their three insurers to the models, who sued in federal court to collect the judgment from the carriers.
In their initial lawsuit in 2023, 24 models sought coverage action against United Specialty Insurance Co. (USLI) and Watford Insurance Co. in addition to Blackboard. At first all three insurers declined to defend or indemnify the strip
clubs. However, the models settled with USLI and Watford, dismissing their claims against them in July 2023 and June 2024. Thereafter, 20 models filed an amended complaint naming only Blackboard as a defendant.
The models alleged that the clubs used their photos without consent to create the false impression with consumers that each model was a stripper at one of the clubs, promoted or endorsed the clubs, or was otherwise associated with the
clubs. They claimed that the clubs’ actions amounted to commercial disparagement and violations of their privacy.
Blackboard argued that since the claims are premised on the club owners’ use of the plaintiffs’ image and likeness, they are barred under the intellectual property excl
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usion, which applies to “‘personal and advertising injury’ arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights.”
The models maintained that their claims fell under an exception to the exclusion for “the use of another’s advertising idea.” Under Massachusetts law, an injury arises out of the use of another’s advertising idea “if the insured took an idea for soliciting business or an idea about advertising.”
According to the judge, the plaintiffs did not establish that the underlying image was originally used for advertising purposes. Instead, the images were misappropriated from the plaintiffs’ own social media pages, which each uses to market herself to potential clients, grow her fan base, and build and maintain her brand.