(CN) – The 1st Circuit on Tuesday upheld a $10,000 verdict for a model whose image appeared on Bose entertainment system boxes without her consent, but said the model was not entitled to a new trial to shoot for a higher award.
While shopping at Best Buy, model Ting Ji saw her picture on the boxes for a Bose DVD home entertainment system. The photo showed Ji partially embracing a male model as they watched TV from a couch. Because the photo had been taken from behind the couch, only the back of Ji’s head and a small portion of her face were visible.
The photos had been taken during a 2004 photo shoot with White/Packert Inc., for which Ji was paid $1,000. At the shoot, Ji signed her modeling agency’s voucher, which included a limited release barring the images from being used on “packages, point of purchase [and] displays.”
But the voucher seemed to contradict White/Packert’s release, also signed by Ji, giving the photography firm the right to use her images “for any purpose whatsoever.”
Thinking it had secured a “total buyout” of Ji’s photos, White/Packert sold the images to Bose. Bose then placed the disputed photo in the upper right corner of the box for its 3-2-1 Series II DVD home entertainment system.
Ji sued Bose and White/Packert for false endorsement under the Lanham Act, and for violations of her publicity and privacy rights under Florida law.
Bose successfully removed the complaint to federal district court in Massachusetts, where the company is based, and filed cross-claims against White/Packert.
The federal judge dismissed the false endorsement claim on the grounds that Ji failed to establish that her image — or “mark,” as it’s called in Lanham Act parlance — was familiar to Bose’s target audience.
The parties disputed whether the voucher or White/Packert’s release controlled Ji’s state-law claims. The issue ultimately went to trial, where a jury sided with Ji but awarded her just $10,000 — a small fraction of the $2 million she demanded.
Jurors said White/Packert was liable to Bose for the award.
All parties appealed, but the federal appeals court in Boston upheld on all fronts, including the verdict, the $10,000 award, and the denial of attorney’s fees to Bose on the Lanham Act claim.
Judge Jeffrey Howard wrote that a new trial on damages was “unwarranted,” and that Bose and White/Packert had waived their claim that the modeling voucher was unenforceable.
Howard added that attorney’s fees for Lanham Act claims are reserved for “exceptional cases,” a standard this case failed to meet.