{"id":407,"date":"2011-02-22T16:52:11","date_gmt":"2011-02-23T00:52:11","guid":{"rendered":"http:\/\/ipmetrics.net\/blog\/?p=407"},"modified":"2011-02-22T16:52:11","modified_gmt":"2011-02-23T00:52:11","slug":"likeness-infringement-excluded-from-coverage","status":"publish","type":"post","link":"http:\/\/www.ipmetrics.net\/blog\/litigation\/case-law\/likeness-infringement-excluded-from-coverage\/","title":{"rendered":"Likeness Infringement Excluded from Coverage"},"content":{"rendered":"
\"ISS

www.issresearch.com<\/p><\/div>\n

In a recent case, ISS Research, LLC v. Federal Ins. Co., Num. 3:10-cv-41 (W.D.N.C.), <\/em>US\u00a0District\u00a0Judge Graham Mullen granted Defendant’s Summary Judgment motion against insured muscle-building company ISS Research, LLC. \u00a0The order upholds an “intellectual property” exclusion in a commercial liability insurance policy issued by Federal Insurance to ISS\u00a0Research.<\/p>\n

The underlying case for which the insured sought\u00a0coverage\u00a0was a Rights of Publicity<\/em> case in which\u00a0ISS Research’s\u00a0use of a photograph of ex-football player\u00a0and model, Paul Green, in a magazine advertisement for Plaintiff\u2019s nutrition bars resulted in a lawsuit against Plaintiff and an individual photographer.\u00a0Green filed suit in California after allegedly discovering that Plaintiff was using a photograph from an unrelated photo\u00a0shoot in a national advertisement without his consent or authorization. The\u00a0Complaint against Plaintiff contained claims for common law misappropriation of likeness,\u00a0statutory misappropriation of likeness under California Civil Code \u00a73344, and unjust\u00a0enrichment. The insurance company refused to defend or indemnify the insured in the lawsuit, and ISS Research in turn\u00a0sued to recover for costs related to the original lawsuit.<\/p>\n

The dispute boiled down to the question of whether or not the concept of “likeness,” which was mis-appropriated\u00a0and gave rise to the underlying case, would include a photograph. <\/em>Ordinarily, the plaintiff argued, the plain and ordinary meaning of term “likeness” does not include a photograph, and California law makes a distinction between a likeness and a photograph.* The defense and the Judge disagreed with that\u00a0distinction, because other courts (including North Carolina) consider a photograph to be a kind of likeness.<\/p>\n

In the order, the Judge explains that the insurance contract at issue imposes a duty on the insurer to indemnify the\u00a0insured for any judgments and to defend the insured against any claims that fall within the\u00a0language of the policy and, while it is the burden of the insured to establish that a loss comes within\u00a0the scope of the policy\u2019s coverage, it is the burden of the insurer to show \u201cthat an exclusion is\u00a0applicable.\u201d Should the language indicate that the policy \u201ccreates a clear exclusion,\u201d\u00a0then that language controls. \u00a0According to the discussion of the case, the commercial liability insurance policy in this case clearly excludes infringement or violation of “any intellectual property law or rights,” so that the policies clearly exclude\u00a0coverage for damages related to the misappropriation of a likeness. \u00a0Therefore, Defendant had no\u00a0obligation to defend or indemnify Plaintiff in the California lawsuit brought by Mr. Green.<\/p>\n

__________<\/p>\n

*\u00a0The statute applies to the unauthorized use of a person\u2019s \u201cname, voice, signature,\u00a0photograph, or<\/strong> likeness\u2026\u201d Cal. Civ. Code \u00a73344(a).<\/p>\n","protected":false},"excerpt":{"rendered":"

In a recent case, US District Judge Graham Mullen granted Defendant’s Summary Judgment motion against insured muscle-building company ISS Research, LLC. The order upholds an “intellectual property” exclusion in a commercial liability insurance policy issued by Federal Insurance to ISS Research. The underlying case for which the insured sought coverage was a Rights of Publicity case in which ISS Research’s use of a photograph of ex-football player and model, Paul Green, in a magazine advertisement for Plaintiff\u2019s nutrition bars resulted in a lawsuit against Plaintiff and an individual photographer.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,18],"tags":[],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p2xROl-6z","_links":{"self":[{"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/posts\/407"}],"collection":[{"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/comments?post=407"}],"version-history":[{"count":0,"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/posts\/407\/revisions"}],"wp:attachment":[{"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/media?parent=407"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/categories?post=407"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/tags?post=407"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}