Motion,Ex Parte: JAIME FAITH EDMONDSON ET AL VS VELVET LIFESTYLES, LLC ET AL

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                                Filing # 49707114 E-Filed 12/06/2016 05:59:43 PM

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL DISTRICT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION

JAIME FAITH EDMONDSON, ANA CHERI
(MORELAND), CARRIE MINTER, CIELO
JEAN GIBSON, CORA SKINNER, DANIELLE
RUIZ, EVA PEPAJ, HEATHER DEPRIEST,
IRINA VORONINA, JESSE GOLDEN, JESSICA
BURCIAGA, JESSICA HINTON, JOANNA
KRUPA, JORDAN CARVER, KATERINA VAN
DERHAM, KIM COZZENS, LAURIE FETTER
(JACOBS), LINA POSADA, MARIA
ZYRIANOVA, MARKETA KAZDOVA,
MASHA LUND, MAYSA QUY, PAOLA
CANAS, RACHEL BERNSTEIN (KOREN),
SANDRA VALENCIA, SARA UNDERWOOD,
TIFFANY TOTH, VIVIAN KINDLE, MELANIE
IGLESIAS, BRENDA LYNN GEIGER,
HEATHER RAE YOUNG, and ROSA ACOSTA,

Plaintiffs,
v. CASE NO.: 2016-025320-CA-40

VELVET LIFESTYLES, LLC, f/k/a VELVET
LIFESTYLES, INC., d/b/a MIAMI VELVET,
GLOBEX PROPERTIES, LLC, RANDY
DORFMAN, OWNER OF VELVET LIFESTYLES,
LLC, AND GLOBEX PROPERTIES, LLC, JOY
DORFMAN, a/k/a JOY ZIPPER, PRESIDENT OF
VELVET LIFESTYLES, LLC, and MY THREE
YORKIES, LLC,

Defendants.
/

 

DEFENDANTS’ VELVET LIFESTYLES, LLC, f/k/a VELVET LIFESTYLES, INC., d/b/a
MIAMI VELVET, JOY DORFMAN, a/k/a JOY ZIPPER, PRESIDENT OF VELVET
LIFESTYLES, LLC, and MY THREE YORKIES, LLC MOTION TO DISMISS THE

AMENDED COMPLAINT AND ALTERNATIVE MOTION
FOR JUDGMENT ON THE PLEADINGS

Defendants, VELVET LIFESTYLES, LLC, f/k/a VELVET LIFESTYLES, INC., d/b/a

MIAMI VELVET, JOY DORFMAN, a/k/a JOY ZIPPER, PRESIDENT OF VELVETLIFESTYLES, LLC, and MY THREE YORKIES, LLC, (herein “Defendants”), by and through
its counsel, respectfully files this Motion to Dismiss the Amended Complaint in this action, and,
in the alternative, moves the Court for Judgment on the Pleadings, which is submitted as a timely
responsive pleading.
I. INTRODUCTION

The instant motion to dismiss and alternative motion for judgment in the pleadings is predicated
on the following points and authorities, asserting that the Court lacks jurisdiction over the subject
matter because it is preempted under Copyright Act, the Plaintiffs, JAIME FAITH
EDMONDSON, ANA CHERI (MORELAND), CARRIE MINTER, CIELO JEAN GIBSON,
CORA SKINNER, DANIELLE RUIZ, EVA PEPAJ, HEATHER DEPRIEST, IRINA
VORONINA, JESSE GOLDEN, JESSICA BURCIAGA, JESSICA HINTON, JOANNA
KRUPA, JORDAN CARVER, KATERINA VAN DERHAM, KIM COZZENS, LAURIE
FETTER (JACOBS), LINA POSADA, MARIA ZYRIANOVA, MARKETA KAZDOVA,
MASHA LUND, MAYSA QUY, PAOLA CANAS, RACHEL BERNSTEIN (KOREN),
SANDRA VALENCIA, SARA UNDERWOOD, TIFFANY TOTH, VIVIAN KINDLE,
MELANIE IGLESIAS, BRENDA LYNN GEIGER, HEATHER RAE YOUNG, and ROSA
ACOSTA, (herein “Plaintiffs”), failed to join an indispensable party(ies), and the Complaint fails
to state a claim for which relief can be granted because, inter alia, the defamation claims and
Plaintiffs failed to provide notice for defamation or otherwise comply with any of the requirements
under Fla. Stat. 770.01

IL. DEFENDANTS’ MOTION AND MEMORANDUM OF LAW

On the merits of the Complaint, Defendants move to dismiss all Counts of the Complaint

pursuant to Florida Rules of Civil Procedure 1.140(b)(1), (6), and (7), which allow the Court todismiss an action because it lacks jurisdiction over the subject matter of a complaint. Additionally,
Defendants move the Court to enter judgment on the pleadings in favor of Defendants on all Counts
of the Complaint pursuant to Florida Rules of Civil Procedure 1.140(c) which allows the Court to
enter judgment in favor of a party if the pleadings establish entitlement to same, as a matter of law.
The lack of jurisdiction is based on preemption, failure to join indispensable parties, and the failure
to state a cause of action for which relief can be granted. The additional bases for judgment are

established in the following sections, addressed to the individual counts.

All Counts of the Complaint are based on the alleged use of a photograph of each of the
Plaintiffs. Each cause of action is premised upon, and inseparable from, the allegations of some
violation in connection with the subject photographs. Despite its length, including 9 overlapping
counts, they all point to the same constant: the photos of the Plaintiffs. Despite alleging some
generalized offense at the use of the photographs, all of the Plaintiffs knew that they posed for the
underlying photographs, which are all risqué in nature. No Plaintiff denies that the photographs
are of themselves, however this is a matter the Defendants will demand strict proof of. Nonetheless,
the Plaintiffs are now prosecuting this action and are seeking damages on the basis of preempted,
precluded, or unavailable claims, or claims for which the statutory prerequisites have not been met,

as explained below

From a basic review of the exhibits to the Complaint, all of the photographs were taken as
part of a professional model “shoot,” and upon information and belief, the custom and practice for
any professional “shoot” requires a release to all rights to those photos, and thus, the “talent”
depicted simply have no ownership rights or other rights to assert in connection with the photos,

thus lacking standing to bring any action for the “use” of these same photographs, under anytheory. Based on the lack of any reference in the Complaint to any “copyright” holder, Plaintiffs,

absent proof of copyright ownership, do not have standing to bring this action.

Based on this, the Complaint is subject to dismissal for multiple reasons, including: (a) lack
of subject matter jurisdiction as the action is preempted by the Copyright Act; (b) failure to join
an indispensable party, namely, the copyright holder of the photographs; (c) failure to state a cause
of action due to a lack of standing and lack of rights in the photographs; (d) failure to state a claim
regarding: (1) common law unfair competition, (2) right of publicity, (3) common law right of
publicity, (4) Florida’s Deceptive and Unfair Trade Practices Act, (5) civil theft, (6) defamation,
(7) defamation per se, (8) unjust enrichment, and (9) negligence. Theses bases for dismissal or

judgment as a matter of law are set forth in more detail below.

Til. PROCEDURAL HISTORY AND SUMMARY OF THE COMPLAINT

Plaintiffs filed the Complaint on January 18, 2016, and served the “named Defendants,”
on or about March 22, 2016, referred to herein as “Miami Velvet.” The Complaint alleges that
Miami Velvet “stole” the photographs of the Plaintiffs and used them to promote its nightclub.
The Complaint seeks damages for purported violations of: Count I - Common Law Unfair
Competition Under Florida Law; Count II - Violation of Fla. Stat. § 540.08: Right of Publicity;
Unauthorized Misappropriation of Name/Likeness; Count III - Violation of Common Law Right
of Publicity; Unauthorized Misappropriation of Name or Likeness; Count IV- Violation of Fla.
Stat. § 501.24: Florida’s Deceptive and Unfair Trade Practices Act, Count V - Violation of Fla.
Stat. § 812.014 and Fla. Stat. § 772.11: Civil Theft; Count VI - Defamation; Count VII —
defamation per se; Count VIII - unjust enrichment; and Count IX — Negligence; (herein

“Counts I-IX”).IV. POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND
ALTERNATIVE MOTION FOR JUDGMENT ON THE PLEADINGS

A. Lack of Subject Matter Jurisdiction-Preemption under Copyright Act

Florida Rule of Civil Procedure 1.140(b)(1) requires the Court to dismiss a claim when it
lacks jurisdiction over the subject matter. The issue of federal preemption is a question of
subject matter jurisdiction. Hernandez et al. v. Coopervision, 661 So. 2d 33 (Fla. 2d DCA 1995)
citing to Florida Auto. Dealers Ind. Benefit Trust v. Small, 592 So. 2d 1179, 1183 (Fla. Ist DCA
1992). When, at any time or in any manner, it is, in good faith, represented to the court by a party
or an amicus curiae that it lacks jurisdiction, the court must examine the grounds of its jurisdiction
before proceeding further. Id. citing to State ex rel. B.F. Goodrich Co. v. Trammell, 140 Fla. 505,
192 So. 175 (1939) (emphasis added). The party claiming preemption bears the burden of proof and
must establish that Congress has clearly and unmistakably manifested its intent to supersede state
law. Hernandez et al. v. Coopervision, 661 So. 2d 33 (Fla. 2d DCA 1995) citing to Bravman vy.

Baxter Healthcare Corp., 842 F. Supp. 747, 753 (S.D. N.Y. 1994).

The doctrine of federal preemption divests this Court of subject matter jurisdiction. The
present case involves the confluence of federal and state law. Under the United States Constitution's
supremacy clause, the state cannot assert jurisdiction where Congress clearly intended to preempt a
field of law. Jacobs Wind Electric Company v. Dept. of Transportation, 626 So. 2d 1333 (Fla. 1993)
citing to U.S. Const. art. VI, cl. 2; Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S.
311, 101 S. Ct. 1124, 67 L. Ed. 2d 258 (1981). “The district courts shall have original jurisdiction of
any civil action arising under any Act of Congress relating to patents, plant variety protection,
copyrights and trade-marks. Such jurisdiction shall be exclusive of the courts of the states in patent,

plant variety protection and copyright cases.” 28 U.S.C. § 1338(a) (1988)(emphasis added).“While Congress intended to preempt the field of state law where the Copyright Act
applies...” it specifically preempts state law when all legal or equitable rights are equivalent to any
of the exclusive rights within the general scope of copyright. /d., 17 U.S.C. §301(a). “The intention
of section 301 . . . is to preempt and abolish any rights under the common law or statutes of a State
that are equivalent to copyright and that extend to works coming within the scope of the Federal

copyright law.” Notes of Committee on the Judiciary, H.R. Rep. No. 94-1476 (1988).

The Eleventh Circuit addressed Copyright Act preemption and reworded the text of § 301(b)
as a two-part test: "[1]whether the rights at issue fall within the 'subject matter of copyright’ set forth
in sections 102 and 103 and [2] whether the rights at issue are ‘equivalent to' the exclusive rights of
section 106." Crow v. Wainwright, 720 F 2d 1224, 1225-26 (11th Cir. 1983) (citing Harper & Row,
Publishers v. Nation Enters., 501 F. Supp. 848, 850 (S.D.N.Y. 1980)), cert. denied, 469 U.S. 819,
83 L. Ed. 2d 35, 105 S. Ct. 89 (1984). See All Pro Sports Camp, Inc. v. Walt Disney Company, 727
So. 2d 363 (Fla. 5" DCA 1999) (Plaintiff concedes that the civil theft claim is preempted by the
Federal Copyright Act 17 U.S.C. § 101 et seg.); Spear Marketing, Inc. v. BancorpSouth Bank, Case
791 F.3d 586 (5" Cir. 2015) (State claims of trade secret theft held preempted by the Copyright
Act. The Court concluded that SMI’s claims were equivalent to the exclusive rights of a federal
copyright because its various claims relating to copying, communicating and transmitting of its
trade secrets were qualitatively the same as a copyright infringement claim.); Photographic
Illustrators Corp. v. Orgill, Inc., 2015 U.S. Dist. LEXIS 99031 (D. Mass. 2015) (Lanham Act
claims preempted by the Copyright Act where the alleged false designation pertains to the origin
of a photograph instead of the false designation of “the producer of the tangible goods that are

offered for sale.” The Court held that while the Defendants’ failure to attribute the images to PICis actionable under the Copyright Act... it would be out of accord with the history and purpose of

the Lanham Act to afford PIC relief under trademark law as well.”).

All of Plaintiffs’ Counts I-[X are based upon the photographs of Plaintiffs, specifically,
Miami Velvet’ alleged copying of photographs of each Plaintiff. Each Count relies upon the factual
elements related to the photographs. A photograph is within the definition of the subject matter of
copyright, specifically, “pictorial, graphic, and sculptural works.” 17 U.S.C. § 102(a)(5). Pursuant
to 17 U.S.C. § 301(a), “... all legal or equitable rights that are equivalent to any of the exclusive
rights within the general scope of copyright as specified by Section 106 in works of authorship
that are fixed in a tangible medium of expression and come within the subject matter of copyright
as specified by sections 102 and 103...., are governed exclusively by this title. Thereafter, no person
is entitled to any such right or equivalent right in any such work under the common law or statutes
of any State.” These rights, under the Copyright Act, include the right to reproduce the copyrighted
work, the right to prepare derivative works based upon the work, the right to distribute copies of
the work to the public, the right to perform the copyrighted work publicly, the right to display the

copyrighted work publicly

“Under the Copyright Act, only the ‘legal or beneficial owner of an exclusive right under
a copyright’ has standing to sue for infringement of that right.” Righthaven, LLC. v. Hoehn, 716
F.3d 1166, 1169 (9thCir. 2013). “Section 106 of the Copyright Act lists the ‘exclusive rights’ that
can be held.” /d. “They include the right to reproduce the copyrighted work, to prepare derivative
works based on the work, and to distribute copies of the work by selling, renting, leasing, or
lending.” /d. Without ownership of any of the exclusive rights under the Copyright Act, the

plaintiff lacks standing to sue for infringement and dismissal is proper. /d. at 1172.All of these rights that are conferred on the copyright owner are implicated or specifically
alleged in this action. However, Plaintiffs have failed to identify the registered copyrights at issue,
Plaintiffs have failed to allege or evidence their ownership in the copyrights, and Plaintiffs have
failed to allege or evidence any assignments in the copyrights, or any portion of those copyrights
All the Counts I-IX of the Complaint depend upon the photographs of each Plaintiff, which is
defined as being proper subject matter within the Copyright Act. Therefore, all the Counts I-IX of
the Complaint are preempted by the Copyright Act. Plaintiffs do not own the copyright, and have
not alleged such ownership in the photograph(s) and, released all rights thereto. Because the
Plaintiffs do not own the copyrights of the photograph(s) at issue, and this lawsuit is preempted

under the Copyright Act, the Complaint must be dismissed.

B. Plaintiffs Failed to Include an Indispensable Party

Florida Rule of Civil Procedure 1.140(b)(7) requires the Court to dismiss a claim when
there is a failure to join an indispensable party. Upon information and belief, and after limited
discovery is permitted, it will be shown that Plaintiffs’ signed releases and gave up all rights in
connection with the subject photograph(s). Accordingly, Plaintiffs do not own copyrights in the
photographs and have no standing to assert any claims in connection with those photographs.
Rather the copyrights of those photographs are owned by the party to whom Plaintiffs have
assigned/released them, likely the photographer who took the photo(s). The owner(s) of the
copyright(s) in the photographs is/are the proper and indispensable parties to bring these claims.
The indispensable party copyright owner(s) interest in the subject matter of the action is such that
if not joined, a complete and efficient determination of the equities and rights and liabilities of the

parties is not possible.Dismissal is warranted in this case, because Plaintiffs have failed to join the copyright
owner(s) in an action against Miami Velvet. Plaintiffs have no standing to bring this action since
the copyright owner(s) have all vested rights in the photograph(s), and thus the copyright owner(s)
are indispensable parties. (Dismissal is proper where plaintiff failed to join the insured in an action
against the insurer under Fla. R. Civ. P. 1.140(b)(7) and (h) because an indispensable party was
one whose interest in the subject matter of the action was such that if not joined, a complete and
efficient determination of the equities and rights and liabilities of the parties was not possible.)
Kephart v. Pickens, 271 So. 2d 163, 1972 Fla. App. LEXIS 5673 (Fla. 4th DCA 1972), writ of
certiorari denied by 276 So. 2d 168, 1973 Fla. LEXIS 4584 (Fla. 1973). (Because beneficiaries
of the inter vivos trust were organizations that were not before the court and could not be brought
before the court, plaintiff's petition with respect to the trust was subject to dismissal for failure to
join indispensable parties.) Fud/mer v. Northern Cent. Bank, 386 So. 2d 856, 1980 Fla. App
LEXIS 16959 (Fla. 2d DCA 1980). (In an action to cancel a building permit, the holder of the
permit must be joined as a party Defendants, and because Plaintiff failed to join the permit holder-
-the Association--as a party to the proceeding, we conclude that dismissal was appropriate
because Immer failed to join an indispensable party.) Jmmer v. City of Miami, 898 So. 2d 258
(Fla. 3d DCA 2005) citing to Fla. R. Civ. P. 1.140(h); City of Deland v. State ex rel. Watts, 423 So.
2d 529, 531 (Fla. 5th DCA 1982); see also Morse Diesel International, Inc. v. 2000 Island Bivd.,

Inc., 698 So. 2d 309, 311-12 (Fla. 3d DCA 1997).

C. Plaintiffs Have No Standing Due to Failure to State a Claim Regarding Rights in the
Photographs

Standing is an affirmative defense and failure to raise it in a responsive pleading generally
results in a waiver. Jaffer v. Chase Home Finance et al., 155 So. 3d 1199 (Fla. 4th DCA 2015)

citing to Phadael v. Deutsche Bank Trust Co. Americas, 83 So. 3d 893, 895 (Fla. 4th DCA 2012);Glynn y. First Union Nat'l Bank, 912 So. 2d 357, 358 (Fla. 4th DCA 2005); Kissman v. Panizzi,
891 So. 2d 1147, 1150 (Fla. 4th DCA 2005). The Court must test the allegations in the complaint
in order to determine if the plaintiff has brought a viable cause of action. Blumstein v. Sports
Immortals, Inc., 67 So. 2d 437 (Fla. 4th DCA 2011). "[W]here no viable cause of action is
asserted... dismissal is appropriate." Gladstone v. Smith, 729 So. 2d 1002, 1005 (Fla. 4th DCA

1999).

Upon information and belief, and after limited discovery it shall be shown, that Plaintiffs’
signed releases and gave up all rights in the subject photograph(s). It has become almost industry
standard for photographers to have the model sign over all rights in connection with the shoot,
including the right of publicity. All Counts I-IX depend upon Plaintiffs’ alleged ownership and
asserted rights in and to the photographs. Without owning any of the rights to the photographs at

issue, Plaintiffs do not have standing to bring any of the Counts I-IX of this suit

D. Single Publication Results in a Single Cause of Action, Making Assertion of 10 Separate
Counts Improper

Plaintiffs have filed this lawsuit alleging one set of facts: they believe Defendants copied
the Plaintiffs’ photographs. From this one alleged act, Plaintiffs have brought 9 counts (Counts 1-
IX). "The state of Florida provides for a ‘single publication/single action rule,’ which means a
single publication may give rise to a single cause of action." Kamau v. Slate, 2012 US. Dist.
LEXIS 158213 (N.D. Fla. 2012) citing to Orlando Sports Stadium, 316 So. 2d. 608 (Fla. 4" DCA
1975). Florida courts have held that a single wrongful act gives rise to a single cause of action,
and that the various injuries resulting from it are merely items of damage arising from the same
wrong. Easton v. Weir, 167 So.2d 245 (Fla.2d DCA 1964) citing to Mims v. Reid, 98 So.2d 498;

62 A.L.R.2d 977, 984 (Fla. 1957).

10Plaintiffs have improperly split their one cause of action into nine (9) counts, presumably
to avoid the proper claim as one, under Title 17 of the U.S. Code; however, Plaintiffs’ have no
copyright registration to base the proper cause of action upon. “The rule is designed to prevent
plaintiffs from circumventing a valid defense to defamation by recasting essentially the same facts
into several causes of action all meant to compensate for the same harm." Kamau at *21-22. See
also Callaway Land & Cattle Co., Inc. v. Banyon Lakes C. Corp., 831 So.2d 204, 209 (Fla. 4th
DCA 2002) (The rule also prevents circumventing the short two-year statute of limitations by re-
describing a slander action to fit a different category of intentional wrong.); Ovadia v. Bloom, 756
So.2d 137, 141 (Fla. 3d DCA 2000) (affirming "that the single publication/single action rule does
not permit multiple actions to be maintained when they arise from the same publication upon which
a failed defamation claim is based."). In Righthaven, LLC v. Hoehn, the Court dismissed the case
for lack of standing on copyright claims, because Righthaven’s copyright assignment was
improperly limited to the bare right to sue, which is insufficient for standing under the Copyright
Act. Righthaven, LLC v. Hoehn, 716 F.3d 1166, 1169-1170 (9" Cir. 2013). “Merely calling
someone a copyright owner does not make it so.” /d. at 1168. Accordingly, Plaintiffs cannot bring
multiple causes of action for one publication. Because Plaintiffs do not have standing to bring the

proper claim under the Copyright Act, Counts I-[X should be dismissed.

In Orlando Sports Stadium, a plaintiff filed suit against a newspaper for defamation and
tortious interference, alleging that the articles concerning the plaintiff were defamatory. Orlando
Sports Stadium v. Sentinel Star Co., 316 So. 2d. 608 (Fla. 4° DCA 1975). The appellate court found
that the defamation and tortious interference claims were essentially the same because they were
based on the same articles and because the “thrust” of the complaint was that these articles were

injurious to the plaintiff. /d. at 609. Likewise, Plaintiffs have based all nine (9) Counts I-IX on

11one alleged action of Defendants’ copying photographs. The “thrust” of all these Counts are the
same, that Plaintiffs were allegedly injured by Defendants’ allegedly copying their photographs.
Plaintiffs have a single publication and a single cause of action. The single cause of action is
preempted by the Copyright Act, which Plaintiffs cannot bring because they have no copyright
registration, no rights to the photographs, and thus no standing. Counts I-IX violate the single

publication, single cause of action rule and should be dismissed.

E. Failure to State a Claim for Common Law Unfair Competition Under Florida Law —
(Count I)

Plaintiffs have failed to state a claim upon which relief may be granted in Count I for unfair
competition. Unfair competition requires the following elements: (1) Plaintiff is the prior user of
the trade name, service mark, or trade mark; (2) Plaintiffs trade symbol is arbitrary or suggestive
or has acquired secondary meaning; (3) Defendants is using a confusingly similar trade symbol to
identify a similar good marketed or services rendered in competition with the plaintiff in the same
area of the plaintiff's established trade symbol; and (4) Defendants’ actions will likely cause
consumer confusion as to the sponsorship of the good or service. Junior Food Stores of W. Fla.,
Inc. v. Jr. Food Stores, Inc., 226 SO. 2d 393, 397 (Fla. 1969); Suntree Techs., Inc. v. Exosense

Int'l, Inc., 693 F.3d 1338, 1346 (11" Cir. Fla. 2012).

Plaintiffs fail to allege any trade name, service mark or trade mark rights in their
photographs. Plaintiff has failed to allege that their trade symbol is arbitrary, suggestive or had
acquired secondary meaning. A cause of action in connection with alleged copying of a photograph
is improper under an unfair competition cause of action and properly lies in copyright. Count I is
subject to dismissal as Plaintiffs have failed to state a claim for unfair competition. Defendants

should be entitled to judgement on this count as a matter of law.

12F. Failure to State a Claim for Violation of Fla. Stat. § 540.08: Right of Publicity;
Unauthorized Misappropriation of Name/Likeness — (Count II)

Plaintiffs have failed to state a claim upon which relief may be granted in Count II for
violations of Sec. 540.08 for the unauthorized publication of Plaintiffs’ images. From the outset in
dealing with this Count, Defendants would incorporate sections IV A, B, and C, above, as it
pertains to the copyright issues, the “indispensable party” issues and the “standing” issues
contained in those sections. More specifically, the section specifically contemplates such
“licensed” use issues:

540.08 Unauthorized publication of name or likeness.—

(4) The provisions of this section shall not apply to:

(b) The use of such name, portrait, photograph, or other likeness in connection with the
resale or other distribution of literary, musical, or artistic productions or other articles of
merchandise or property where such person has consented to the use of her or his name,
portrait, photograph, or likeness on or in connection with the initial sale or distribution
thereof. (Emphasis added).

As stated above, based on “industry standards” and the fact that every photograph is clearly
professionally taken, after limited discovery, it shall be shown that Plaintiffs’ signed releases and
gave up all rights in the subject photograph(s). It has become “industry standard” for photographers
to have the model sign over all rights in connection with the “shoot,” including the right of publicity.
Counts I depends entirely upon Plaintiffs’ alleged ownership and asserted rights in and to the
photographs at issue. Without alleging ownership of the rights to the photographs at issue, Plaintiffs

do not have standing to bring Count II, and it is subject to dismissal, as well as being outside the

jurisdiction of this Court.

G. Failure to State a Claim for Violation of Common Law Right of Publicity; Unauthorized
Misappropriation of Name or Likeness — (Count II)

Plaintiffs have failed to state a claim upon which relief may be granted in Count III for

Common Law Right of Publicity; misappropriation of image. Invasion of privacy, appropriation,

13requires the unauthorized use of a person’s name or likeness to obtain some benefit. State Farm &
Ca. Co. v. Compupay, Inc., 654 So. 2d944, 948 (Fla 3™ DCA 1995). “Republication of facts
already publicized elsewhere cannot provide a basis for an invasion of privacy claim.” Heath v.
Playboy Enterprises, Inc., 732 F. Supp. 1145, 1148 (S.D. Fla. 1990) citing to Valentine v. C.B.S.,
Inc., 698 F.2d 430, 433 (11th Cir. 1983) (song lyrics did not disclose private facts but merely
detailed events previously disclosed through public trial testimony); Faloona v. Hustler Magazine,
Inc., 799 F.2d 1000, 1006 (5th Cir. 1986), reh'g. denied, 802 F.2d 455 (5th Cir. 1986), cert. denied,
479 US. 1088, 107 S. Ct. 1295, 94 L. Ed. 2d 151 (1987) (since photographs printed in Hustler
magazine had already been widely published elsewhere, Hustler revealed no private
facts)(emphasis added); Jackson, 574 F. Supp. at 11 (citing Restatement (Second) of Torts, §
625D, Comment b); Prosser & Keaton, The Law of Torts, § 117 (5th Ed. 1984). “The prior
publication of all facts published in the March 1988, issue of Playboy further evidences their public
nature.” Heath vy. Playboy, at 1148. “Republication of these facts cannot be actionable as an

invasion of privacy as a matter of law.” Id.

Even if the Court accepts Plaintiffs’ allegations that Defendant copied and republished Plaintiffs’
photographs, the photographs were already widely published and, therefore, republication is not
actionable as an invasion of privacy as a matter of law. All of the photographs alleged to have
been used by Emperors were also widely published, remained widely available online, were
available prior to the “republication,” and, thus, their use simply cannot be asserted as the basis

for any “invasion of privacy,” as a matter of law

H. Failure to State a Claim for Violation of Fla. Stat. § 501.24: Florida’s Deceptive and
Unfair Trade Practices Act — (Count IV)

Plaintiffs have failed to state a claim upon which relief may be granted for Florida's

Deceptive and Unfair Trade Practices Act in Count V. The Florida's Deceptive and Unfair Trade

14Practices Act (FDUTPA), sections 501.201-.213, Florida Statutes is intended to "protect the
consuming public and legitimate business enterprises from those who engage in unfair methods of
competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade
or commerce." § 501.202(2). See also Delgado v. J.W. Courtesy Pontiac GMC-Truck, Inc., 693
So.2d 602, 605-06 (Fla. 2d DCA 1997) (discussing the purpose of FDUTPA in light of its
legislative history). A deceptive practice is one that is "likely to mislead" consumers. Davis v.
Powertel, Inc., 776 So.2d 971, 974 (Fla. 1st DCA 2000). An unfair practice is "one that ‘offends
established public policy' and one that is ‘immoral, unethical, oppressive, unscrupulous or
substantially injurious to consumers.' " Samuels v. King Motor Co. of Boca Raton, 782 So.2d 489,
499 (Fla. 4th DCA 2001) (quoting Spiegel, Inc. v. Fed. Trade Comm'n, 540 F.2d 287, 293 (7th
Cir.1976)). FDUTPA affords civil private causes of action for both declaratory and injunctive
relief and for damages. A consumer claim for damages under FDUTPA has three elements: (1) a
deceptive act or unfair practice; (2) causation; and (3) actual damages. See Chicken Unlimited, Inc.
y. Bockover, 374 So0.2d 96, 97 (Fla. 2d DCA 1979); Gen. Motors Acceptance Corp. v. Laesser,
718 So.2d 276, 277 (Fla. 4th DCA 1998); Macias v. HBC of Fla., Inc., 694 So.2d 88, 90 (Fla. 3d
DCA 1997). The standard for determining the actual damages recoverable under FDUTPA is well-
defined in the case law:
"[T]he measure of actual damages is the difference in the market value of the product or
service in the condition in which it was delivered and its market value in the condition in
which it should have been delivered according to the contract of the parties. [ ... ] A notable
exception to the rule may exist when the product is rendered valueless as a result of the
defect-then the purchase price is the appropriate measure of actual damages." Rollins, Inc.
v. Heller, 454 So.2d 580, 585 (Fla. 3d DCA 1984) (quoting from Raye v. Fred Oakley
Motors, Inc., 646 S.W.2d 288, 290 (Tex.App.1983)).

The primary “disconnect” is with this concept of “damages.” Plaintiffs have asserted that

they have been damaged by: 1) failure to obtain Plaintiffs’ consent before “using” their images to

15promote Defendants’ clubs, 2) failure to obtain Plaintiffs’ authorization before “using” their
images to promote Defendants’ clubs in promotional materials, 3) failing to compensate Plaintiffs
for using their images to promote Defendants’ clubs in promotional materials, 4) falsely
representing that Plaintiffs “endorsed” Defendants’ clubs, and 5) falsely representing that Plaintiffs
would perform “sexually oriented activities” such as “lap dances or nude dances” within
Defendants’ clubs. From even a cursory evaluation of these purported “damages,” none of them
would be applicable to the scenario at issue.

Under any analysis, the plaintiff cannot support any cause of action under the Florida
Deceptive and Unfair Trade Practices Act. To properly support such a claim, the Plaintiffs must
prove actual damages under the Florida Deceptive and Unfair Trade Practices Act. The Plaintiffs
have incurred no actual damages and that the Plaintiffs are unable to prove any actual damages in
this case. As contrasted to an action brought by an enforcing authority under Section 501.207, in
order for a consumer or individual plaintiffs to be entitled to any relief under FDUTPA, the
consumer or individual must not only plead and prove that the conduct complained of was unfair
and deceptive, but the consumer must also plead and prove that he or she was aggrieved by the
unfair and deceptive act. Claimants are not entitled to recover where they fail to establish that they
suffered actual damages. See Macias vs. HBC of Florida, 694 So. 2d 88 (Fla. 3 DCA 1997) (in
which plaintiffs’ attorneys represented appellee in that action, proving that the law firm was on
notice of this requirement!). See also Chicken Unlimited v Bockover, 374 So. 2d 96 (Fla 2"! DCA.
1979): and IZADI v Machado Ford, 550 So. 2d 1135 (Fla 3™ DCA 1989), in which the court stated
“actual damages must be alleged to state a cause of action for misleading advertising and
deceptive and unfair trade practices, even where advertisement is false as a matter of law”. See

also Himes v. Brown and Company Securities Corporation, 518 So. 2d 937 (Fla 31 DCA 1988),

16in which the court stated that, “In Florida, unless the fact finder is presented with evidence which
will enable it to determine damages for lost profits with a reasonable degree of certainty, rather
than by means of speculation and conjecture, the claimant may not recover such damages.” In the
instant action, there is nothing but nebulous and nondescript description of the “damages” and
some number ($340,000.00) asserted, with no description of how this number was arrived at. This
is rank speculation and does not satisfy the requirements of FDUTPA. Finally, because the
Plaintiffs have brought an unsupported claim under the Florida Deceptive and Unfair Trade
Practices Act, the Defendants are entitled to seek attorney fees and costs under Florida Statute
501.2105 (3), and the trial court may award the prevailing party the sum of reasonable costs
incurred in the action plus a reasonable legal fees

The bottom line is that FDUTPA is a remedial statute designed to protect consumers. See
Beacon Prop. Mgmt., Inc. v. PNR, Inc., 890 So.2d 274, 279 (Fla. 4th DCA 2004). These “models”

are not the consumers that FDUTPA was designed to protect and this Count V must be dismissed.

I. Failure to State a Claim for Violation of Fla. Stat. § 812.014 and Fla. Stat. § 772.11:
Civil Theft — (Count V)

Plaintiffs have failed to state a claim upon which relief may be granted in Count III for
civil theft. To maintain a cause of action under the civil theft statute, Plaintiffs must show by "clear
and convincing evidence" an injury caused by the Defendants' violation of one or more of the
provisions of the criminal theft laws found in Fla. Stat. §§ 812.012-037 (West 2006). Fla. Stat. §
772.11; see Palmer v. Gotta Have It Golf Collectibles, Inc., 106 F.Supp.2d 1289, 1303
(S.D.Fla.2000) (stating that "a cause of action for civil theft ‘derives from two statutory sources
the criminal section setting forth the elements of theft, and the civil section granting private parties
a cause of action for a violation of the criminal section'") (quoting Ames v. Provident Life &
Accident Ins. Co., 942 F.Supp. 551, 560 (S.D.Fla.1994)). As a preliminary consideration, §

17772.11(1), specifically states that, “before filing an action for damages under this section, the
person claiming injury must make a written demand for $200 or the treble damage amount of the
person liable for damages under this section.” The Plaintiffs’ “demand,” which was not attached
to the Complaint, simply says, “Demand for Treble Damages- $480,000.00. As outlined above
Section 772.11 authorized threefold the actual damages. Accordingly, this brings the value of the
damages and this demand to $480,000.00...Under Section 772.11 you have 30 days from the
receipt of this letter, but no later than September 13, 2015, within which to comply with this
demand...” Defendants would assert that the phraseology used in the “cease and desist letter” does
not comply with the “notice” requirements set forth in the statute.

More critically, the predicate basis for the civil theft claims made by Plaintiffs is Sec
812.014, which provides.

(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain

or to use, the property of another with intent to, either temporarily or permanently:

(a) Deprive the other person of a right to the property or a benefit from the property

(b) Appropriate the property to his or her own use or to the use of any person not entitled
to the use of the property.

Fla. Stat. § 812.014(1)

Tn order to establish a violation of section 812.014, Plaintiffs must show that Defendants
"knowingly obtained or used, or endeavored to obtain or to use," Plaintiffs’ “property” with the
"felonious intent" to "appropriate the property to [Defendants’] own use or to the use of any person
not entitled to the use of the property." Pa/mer, 106 F.Supp.2d at 1303; see Ames, 942 F.Supp. at
560 (holding that the plaintiff must show "felonious intent" to commit theft in order to establish a
violation of section 812.014(1)). That is, "[t]heft is a specific intent crime, requiring actual

knowledge on the part of the Defendants." Healy v. Suntrust Serv. Corp., 569 So.2d 458, 460

18(Fla.Dist.Ct.App.1990). See also Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006).

Coupled with the “ownership” and copyright issues raised above, Defendants would
incorporate those challenges in II A., B., and C., above. Without establishing ownership of the
images, through copyright issues that would need to be addressed in a proper Federal Complaint,
the efforts to pursue a “civil theft” claim simply do not state a cause of action
J. Failure to State a Claim for Defamation (Count VI) and Defamation Per Se (Count VII)

“A motion to dismiss, filed pursuant to Florida Rule of Civil Procedure 1.140(b)(6), tests
the legal sufficiency of a complaint to state a cause of action.” McWhirter, Reeves, McGothlin,
Davidson, Rief & Bakas, P.A. v. Weiss, 704 So. 2d 214, 215 (Fla. 2d DCA 1998); Norwich vy.
Global Fin. Assocs., LLC, 882 So. 2d 535, 536 (Fla. 4th DCA 2004). When testing the sufficiency
of the pleadings, it is important to note that “Florida is a fact-pleading jurisdiction, not a notice-
pleading jurisdiction.” Deloitte & Touche v. Gencor Indus., Inc., 929 So. 2d 678, 681 (Fla. 5th
DCA 2006); see also Horowitz v. Laske, 855 So. 2d 169, 172 (Fla. 5"* DCA 2003) (same); Ddu
Exp., Inc. v. ABC Distrib., LLC, No. 06-8888-CA-06, 2010 WL 8742285 (11th Cir. Ct. June 22,
2010) (citing Gencor Indus., Inc. at 681). Accordingly, the District Court of Appeals have
explained that “[c]onclusory allegations, along with unwarranted deductions of facts or
alternatively legal conclusions masquerading as facts will not serve to defeat a motion to dismiss.”
Ddu Exp., Inc (citing federal cases) (emphasis added); see also W.R. Townsend Contracting, Inc.
vy. Jensen Civil Constr., Inc., 728 So. 2d 297, 300 (Fla. Ist DCA 1999) (the court “need not accept
internally inconsistent factual claims, conclusory allegations, unwarranted deductions, or mere
legal conclusions made by a party”) (emphasis added).

Defamation requires “(1) publication; (2) falsity; (3) actor must act with knowledge or

reckless disregard as to the falsity on a matter concerning a public official, or at least negligently

19on a matter concerning a private person; (4) actual damages; and (5) statement must be
defamatory.” /nternet Solutions Corp. v. Marshall, 39 So. 3d 1201, 1214 n.8 (Fla. 2010), citing
Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008). “The plaintiff [must] bear the
burden of showing falsity, as well as [the Defendants’] fault, before recovering damages.”
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986); see also Milkovich v. Lorain
Journal Co., 497 U.S. 1, 19-20 (1990) (requiring plaintiff to prove statements false in a defamation
case). Here, Plaintiffs must prove that Miami Velvet published the photos, that the photos are
materially false about each Plaintiff, that the photos were made with a negligent disregard for the
truth or veracity of each statement by Defendants, and that each Plaintiff has suffered damages as
a direct and proximate cause of each defamatory statement. Additionally, truth is a defense to
defamation. Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1108 n.13 (Fla. 2008). (“truth remains
an available defense to Defendants who can prove that the defamatory implication is true”)
Because each Plaintiff cannot prove that they were defamed, or that they incurred actual damages,

Plaintiffs’ claims of defamation must be dismissed.

The “statements” actually made by Miami Velvet, found in the Complaint Exhibits are
opinions and hyperbole - even if viewed as unflattering ones to the Plaintiffs - and not a proper
basis for Plaintiffs' vague defamation claims. Any statements attributed to Miami Velvet would be

“statements of opinion,” at best, not fact, under Florida law.

Statements of opinion, however offensive, are not defamatory. Gertz, 418 U.S. at 339-40
("Under the First Amendment there is no such thing as a false idea. However pernicious an opinion
may seem, we depend for its correction not on the conscience of judges and juries but on the
competition of other ideas").Constitutionally protected statements of opinion are made based on

information known or available to the speaker as a member of the public. Zown of Sewall’s Point v.

20Rhodes, 852 So. 2d 949, 951 (Fla. DCA 4th 2003); Morse v. Ripken, 707 So. 2d 921, 922 (Fla. 4th
DCA 1998). The determination of whether a statement is one of opinion or fact is left to the courts.
Morse, 707 So. 2d at 922; Zambrano v. Devanesan, 484 So. 2d 603, 606 (Fla. 4th DCA 1986).
Plaintiffs fail to allege with any detail or specificity what statements were defamatory, how it
affected each of the eight separate Plaintiffs and/or how each of those Plaintiffs were damaged by
any purported statement. Plaintiffs’ Complaint is merely a recitation of the elements of defamation
and not of facts sufficient to state a cause of action under any theory related thereto.

1, Miami _ Velvet’s Statements Concern Public Figures, and the Pleadings do not Meet_the
Heightened Threshold for Showing Miami Velvet’s Statements Were Defamatory.

Plaintiffs' Complaint concedes the “high repute” and visibility each Plaintiff. The Plaintiffs
are all either pornographic models of have been associated with sexually laden or suggestive
modeling. Yet, here are these “adult” entertainment professionals feigning offense as if they were
secretly photographed in a state of undress. To the contrary, none of the photographs described in
the allegations from the Complaint show the Plaintiffs without clothing on. When that is balanced
against the substantial number of Plaintiffs who have made a name for taking their clothing off, in
print and video, it is highly questionable that such overreaching complaints have been properly
lodged. However, once having chosen to sell their image, either nude of sexually laden, these
particular models have come back to the well, seeking not only the lucrative pay day that they are
already believed to have agreed to, but they now want an undeserved, and not lawfully requested,

windfall

Given the Plaintiffs’ prominence, largely a function of their success in modeling in a
provocative manner, and often in the nude, it strains the imagination to believe they are not public
figures, whether in general or for a perhaps more narrowly circumscribed purpose. The Plaintiffs!

activities within the entertainment community are well known, and highly publicized by the

21Plaintiffs themselves with considerable regularity. In light of such prominence, and especially
within the adult entertainment community, Plaintiffs are certainly public figures, and at least
limited-purpose public figures. As such, they are held to a higher standard in bringing claims based

on defamation.

The law of the United States, and the law of Florida, all hold public figure defamation
plaintiffs to a higher burden than private individuals. New York Times v. Sullivan, 376 U.S. 254,
280-282 (1964); Sosa v. DIRECTV, Inc., 437 F.3d 923, 933 (9th Cir. 2006); Silvester v. Am. Broad.
Cos., 650 F. Supp. 766, 770 (S.D. Fla. 1986). While public figures can recover for defamation, the
standard is remarkably high. A public figure cannot prevail in a defamation claim unless it proves
that the statement was made with “actual malice,” that is, with knowledge of its falsity or with
reckless disregard for the truth. New York Times v. Sullivan, 376 U.S. 280. The standard is a
subjective one: there must be sufficient evidence to permit the conclusion that the Defendants
actually had a “high degree of awareness of . . . probable falsity.” Garrison v. Louisiana, 379 U.S.
64, 74 (1964). Thus, failure to investigate before publishing, even when a reasonably prudent
person would have done so, is not sufficient to establish reckless disregard. Harte-Hanks
Communications v. Connaughton, 491 U.S. 657, 688 (1989).; St. Amant v. Thompson, 390 U.S.
727, 731, 733 (1968). “Moreover, [the plaintiff] must prove actual malice with clear and
convincing evidence.” Dockery v. Fla. Democratic Party, 799 So. 2d 291, 294 (Fla. 2d DCA
2001). “There must be sufficient evidence to permit the conclusion that the Defendants in fact
entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727,

731 (1968)

To prove defamation, a public figure must show that the false information was published

with actual malice - knowledge that the statement was false - or a reckless disregard for the truth.

22N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). In Florida, a two-step approach is used to
determine whether an individual is a public figure: First, the court must determine whether the
person is involved in a "public controversy," or a matter that reasonable people would expect to
affect people beyond its immediate participants, Gertz, 418 U.S. at 323; Mile Marker Incorporated
y. Peterson Publishing, LLC, 811 So. 2d 841, 845-46 (Fla. 4th DCA 2002); Second, after defining
a public controversy, the court must further determine whether the Plaintiff played a sufficiently
central role in the controversy to be considered a public figure. Gertz, 418 U.S. at 323; Mile
Marker, 881 So. 2d at 846; Della-Donna v. Gore Newspapers Co., 489 So. 2d 72, 75 (Fla. 4th

DCA 1986).

As prominent individuals, it is easy for Plaintiffs to become involved in public discussion
or controversies. Plaintiffs’ own self-promotion, including the publications which presumably own
the rights to those photos reveals a public interest in the story. Moreover, the images are widely
available to those who desire them. The Plaintiffs go out of their way to highlight the level of
publicity they have, and continue to seek, as shown by the continued recitation of the number of

fans or followers that each Plaintiff has on social media, such as Facebook, Instagram and Twitter.

Enhancing the argument that these photographs are open to public review, debate,
discussion, or controversy, there is no indication that Plaintiffs manufactured these photos to
enhance their public stature. Instead, they knowingly, and with the direct purpose of promotion,
took the provocative and revealing photographs, which they now wish to convince this Court that
they are embarrassed about. Where an activity affects more than those immediately involved
within it, and where a party has not pursued publicity on its own, the occurrence is more likely to
be considered a public controversy. Mile Marker, 811 So. 2d at 845-46. In the instant case,

Plaintiffs were presumably hired by another entity for that entities publicity and promotion of its

23products/services. The Plaintiffs’ modeling efforts in connection with these photographs were not
efforts of personal publicity. The Plaintiffs knew that their photographs would be used in a public

manner for the promotion of a third party’s goods/services.

Given the role Plaintiffs played in the underlying photographs specified in the Complaint,
and many more on each of the Plaintiffs’ own social media sites, Plaintiffs are central to the images
and controversies they address. Miami Velvet was not seeking to harm the Plaintiffs through some
attenuated connection they had to the adult entertainment industry - the Plaintiffs were central to
those industries, and hardly could be discussed in any depth without identifying them. Even
independent of these conflicts, the coverage of Plaintiffs found online and in their own social media
pages represents a pervasive interest in the Plaintiffs professional and personal dealings even when

free of controversy.

As such, Plaintiffs are public figures embroiled in public debate, discussion, review and
controversy with respect to the material appearing on Miami Velvet’ social media pages. By dint
of that status, Plaintiffs must allege that Miami Velvet acted with actual malice - knowing falsity
of its statements - or a reckless disregard for the truth. Plaintiffs fail to make an adequate allegation,
instead simply repeating the elements of defamation. Consequently, as public figures, they have

failed to show a prima facie case of defamation per se or libel

Even if this Court interprets Miami Velvet’ statements as being factual in nature, rather
than pure opinion, they still would not constitute defamation. Minor factual inconsistencies and
embellishments, even if construed as fact rather than opinion, do not convert a statement the
substance of which conveys essentially the same meaning, into defamation. Smith v. Cuban
American Nat 'l Foundation, 731 So0.2d 702, 706 (Fla. 3d DCA 1999) (isolated and cherry-picked

errors or falsehoods will not sustain a cause of action for defamation). In short, even if Miami

24Velvet got minor details wrong, its statements - if viewed as facts - are not defamatory, so long

as the general sentiment they convey is factually correct.

Thus, even if Miami Velvet botched or muddled the factual details of Plaintiffs’ conduct
and public image, the gist of the social media posts - namely, that Plaintiffs have previously
removed their clothing or modeled in a sexually provocative outfits in exchange for money -
remains true. These facts are inescapable, as there are numerous publications of such, photographic

and video evidence available on the internet and in the media

Slight alterations to tho