Underwear Model's Suit Is Lacking, Dillard's Says
12/3/2012 10:07:00 AM,
DALLAS (CN) - Dillard's wants summary judgment against a former underwear model who sued it for misappropriation of likeness 13 years after a photo shoot.
The Campbell Agency allegedly provided Stephen Clark to model Roundtree & York underwear for a photo shoot in 1998.
Dillard's said Clark knew the photos were for Dillard's advertising, and that the model was paid $4,050 for his work.
But in January 2010, Clark allegedly demanded additional money from Dillard's, which said it used the photos on Roundtree & York (R&Y) packages between 2005 and 2011.
"Now - over ten years later - plaintiff complains that he is almost positive that he did not consent to the use of the photographs for R&Y packages," according to a motion for summary judgment filed last week by Dillard's. "Plaintiff, who no longer works as a model, filed this lawsuit claiming that Dillard's misappropriated his likeness by using his photographs on R&Y packages. Alternatively, plaintiff sued for quantum meruit and for an injunction to prevent further use of his photographs."
Both the department store and the Campbell modeling agency are named as defendants to the complaint in Dallas County.
Dillard's said the statute of limitations has expired, and that that Clark had until fall 2007 to file because the claims accrued by the fall of 2005.
Laches also bar suit over a 13-year-old photo shoot, Dillard's said.
"Dillard's relied on plaintiff's silence," according to the motion authored by Susman Godfrey attorney Ophelia Camina. "Dillard's destroyed its documents related to the photo shoot; Campbell (plaintiff's agent) and McKool (the photographer) did too. Even the plaintiff destroyed his records. Likewise, because of the long delay, witnesses are dead and memories are faded."
There is no evidence Dillard's received any advantage or benefit from the alleged appropriation, the store added.
"Second, there is no evidence that plaintiff suffered an injury as a result of the defendant's alleged appropriation," Camina wrote. "Third, there is no evidence to support the causal link between the appropriation and any alleged damages."
Clark also cannot show that use of the photographs unjustly enriched Dillard's, the brief states.
There is furthermore no evidence that Dillard's received any benefits by fraud, duress or the taking of an undue advantage of Clark, according to the motion.
Clark is moreover not entitled to injunctive relief because Dillard's has already removed his photographs from underwear packaging, the store added.
"Dillard's has not intention of using plaintiff's photographs in the future," Camina wrote. "Thus, there is no risk of imminent harm to plaintiff, much less risk of irreparable harm."
The retailer operates approximately 300 stores in 29 states.