Right of Publicity

A Release Is Not a License to All: Electra v. 59 Murray Enterprises and the Models Whose Images Sold the Nightclub

The Second Circuit revived right-of-publicity claims by professional models whose photographs were lifted to advertise strip clubs online, holding that a release signed for one purpose is not consent against the world.

January 9, 2026
Smartphone showing a nightclub social-media promotion featuring a model's photograph
The court treated a website-and-social-media advertising campaign as a textbook unauthorized commercial use of a person's likeness. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

The cheapest way to make a venue look glamorous is to borrow someone else’s glamour. In Electra v. 59 Murray Enterprises, Inc., No. 19-235 (2d Cir. Feb. 9, 2021), the United States Court of Appeals for the Second Circuit confronted exactly that shortcut: eleven professional models—among them Carmen Electra, Tiffany Toth, Jessa Hinton, and Heather Rae Young—alleged that three New York gentlemen’s clubs had pulled their photographs off the internet and used them on club websites and social media to suggest the women appeared at, endorsed, or worked for the clubs. None of them had. The panel of Judges Kearse, Calabresi, and Pooler affirmed dismissal of the Lanham Act false-endorsement claims but vacated the district court’s summary judgment on the New York Civil Rights Law §§ 50-51 publicity claims for the six plaintiffs whose claims were timely, sending the case back to the Southern District of New York (Judge Naomi Reice Buchwald). The decision is now a standard reference point for what happens when a business decorates its digital storefront with a stranger’s face.

At a glance

  • Case: Electra v. 59 Murray Enterprises, Inc., No. 19-235 (2d Cir. Feb. 9, 2021), reported at 987 F.3d 233; on appeal from the U.S. District Court for the Southern District of New York (Buchwald, J.).
  • Parties: Eleven professional models against three affiliated New York adult-entertainment clubs (59 Murray Enterprises, AAM Holding Corp., and Jay-Jay Cabaret).
  • Conduct: Use of the models’ photographs—obtained from third parties, not the models—on club websites and social-media advertising without the models’ consent.
  • Claims: New York Civil Rights Law §§ 50-51 (statutory right of privacy/publicity), Lanham Act § 43(a) false endorsement, New York General Business Law § 349, and libel.
  • Holdings: §§ 50-51 claims revived for the six timely plaintiffs; releases the models signed with their modeling agencies did not constitute consent running to the clubs; Lanham Act false-endorsement claims affirmed dismissed for failure to show “public prominence”/recognizability; GBL § 349 and libel claims dismissed.

Borrowing a face to sell a business

The factual core is mundane and exactly why the case matters for ordinary commercial defendants. The clubs did not photograph the plaintiffs, hire them, or transact with them in any way. Instead, images of the models—taken in unrelated professional shoots—made their way to the clubs through third-party contractors, and the clubs deployed them in promotional posts implying the women were associated with the venues. That is the paradigmatic §§ 50-51 violation: New York’s statute makes it both a misdemeanor and a tort to use “the name, portrait or picture of any living person” for “advertising purposes or for the purposes of trade” without that person’s “written consent.”

Two features of the statute did the work here. First, §§ 50-51 protects against unauthorized commercial use specifically; using a recognizable photograph to advertise a paid-admission business is advertising in its most literal sense, so liability did not depend on any subtle theory of implied endorsement. Second, the right is personal to the subject of the image. The clubs’ defense leaned heavily on paperwork the models had signed, but that paperwork belonged to a different relationship entirely.

Why the releases did not save the clubs

The district court had reasoned that because the models signed broad releases transferring rights in their photographs, they could not complain about downstream use. The Second Circuit rejected that logic on two independent grounds.

The first is privity. The release agreements were between the models and their modeling agencies or photographers—not the clubs. Even assuming those agreements transferred proprietary rights in the photographs, the clubs were strangers to the contracts and could not invoke them. As one contemporaneous practitioner summary put it, written consent given to one party “is not a blanket agreement for all to use the images for any purpose.” A copyright-style transfer of the image file is not the same thing as the subject’s statutory consent to a particular advertiser’s commercial use.

The second ground is conceptual, and more important. The court emphasized that § 51 protects a statutory privacy and publicity interest that is distinct from ownership of the photograph itself. A model can sign away her economic interest in a picture as a piece of intellectual property and still retain her statutory right not to have her likeness used to advertise a business she never agreed to promote. The two interests travel separately. That distinction matters far beyond nightclubs: it means an agency’s broad model release, a photographer’s copyright assignment, or a stock-license grant does not automatically immunize an advertiser who repurposes the image to imply a personal association.

The court did temper the revival. Applying New York’s one-year statute of limitations for §§ 50-51 claims (measured under the single-publication rule), it narrowed the surviving claims to the six plaintiffs whose claims were timely—Lee, Mayes, Koren, Shake, Hinton, and Golden—and found that disputed material facts about the terms of the releases for Shake and Hinton precluded summary judgment in any event. The takeaway for defendants is unforgiving: a release in the file is not a free pass; it is a factual question whose terms must actually cover the use.

The Lanham Act and the “public prominence” problem

The plaintiffs also pleaded false endorsement under § 43(a) of the Lanham Act—the theory that consumers seeing the photos would believe the models endorsed the clubs. Here the models lost, and the reason exposes a real gap between the two regimes.

A false-endorsement claim sounds in consumer confusion: it requires that the public recognize the plaintiff well enough to perceive an endorsement. The Second Circuit affirmed dismissal because most plaintiffs could not show sufficient “public prominence” or recognizability. Where a viewer sees an unidentified attractive person in an ad, the court reasoned, the viewer infers paid modeling, not a celebrity’s seal of approval. Without recognizability, there is no false endorsement—just an unauthorized use.

That holding became the subject of a certiorari petition (No. 21-415) arguing that the Second and Ninth Circuits wrongly elevated “public prominence” into a threshold that shuts lesser-known models out of false-endorsement law, when a commercial interest in one’s own identity should suffice. The Supreme Court did not take the case. The practical result is a two-track world: the federal false-endorsement claim rewards fame, while the state §§ 50-51 claim protects anyone whose picture is used commercially, famous or not. For non-celebrity plaintiffs, the state statute is the stronger tool—a point with direct consequences for the influencer economy.

The social-media and influencer dimension

Electra predates the most aggressive phase of the creator economy, but its facts are the creator economy’s recurring nightmare. The clubs’ offending conduct was posting images to “websites and social media”—the same channels where businesses today scrape, repost, and “regram” attractive content to manufacture a vibe. Several dynamics make the holding especially live for influencers:

  • The image already exists in commerce. Models and influencers populate the internet with professional, licensed, and stock photography. The existence of a license somewhere in the chain is precisely what tempts an advertiser to assume it can be reused—and precisely what Electra says is not consent to this advertiser’s use.
  • Repurposing implies association. A nightclub posting a model’s photo and an apparel brand reposting an influencer’s selfie are doing the same legally salient thing: using a real person’s likeness to suggest a connection to the business. Under §§ 50-51, that is advertising, full stop.
  • The fame asymmetry cuts in the influencer’s favor. Micro-influencers and working models often cannot clear the Lanham Act’s recognizability bar. Electra confirms that the state right of publicity does not have that bar, making it the natural cause of action for the very creators most likely to be ripped off.

Open questions

The decision resolved the threshold defenses but left several issues that recur in influencer disputes. How precisely must a written consent describe the permitted use before it covers a later, different commercial deployment—and who bears the risk of ambiguity? Does the single-publication rule meaningfully limit liability when an image is reposted, re-cropped, and re-shared across platforms over years, or does each materially different republication restart the clock? And how should courts treat the increasingly common situation where a brand obtains an image through a stock library or an aggregator whose own license is silent on personality rights? Electra answers none of these directly, but its insistence that the personality right travels separately from the image file frames each of them.

Implications

  • A model/stock release is not advertiser consent. Businesses cannot rely on someone else’s release; the relevant question is whether the subject consented to this commercial use. Audit licenses for express personality-rights language before publishing.
  • State right-of-publicity law outperforms the Lanham Act for non-celebrities. Counsel for working models and smaller influencers should lead with §§ 50-51 (or the analogous state statute) rather than betting on false endorsement.
  • Recognizability is a real bar to false-endorsement claims. Defendants facing Lanham Act counts should test whether the plaintiff is famous enough to support a confusion-based endorsement theory.
  • Timeliness is dispositive. New York’s one-year limit (single-publication rule) can extinguish otherwise-strong publicity claims; plaintiffs must move quickly and plead the republication dates carefully.
  • Provenance of an image equals risk. “We got it from a contractor” is not a defense; advertisers own the consent diligence for every face they post.

Frequently asked questions

Does this case mean a signed model release is worthless? No. It means a release only protects the parties to it and only for the uses it actually covers. A release a model signs with her agency does not give an unrelated business consent to use her image, and a transfer of rights in the photograph is not the same as consent to advertise with her likeness.

Why did the models win on state law but lose on the Lanham Act? New York Civil Rights Law §§ 50-51 protects anyone against unauthorized commercial use of their likeness, regardless of fame. The Lanham Act false-endorsement claim requires consumer confusion about endorsement, which in turn requires that the public recognize the plaintiff. Most of the models could not show that “public prominence,” so the federal claim failed while the state claim survived.

How does this apply to influencers and brands today? Directly. Reposting an influencer’s or model’s photo to promote a business is the modern equivalent of the clubs’ conduct. Under Electra, the existence of a license somewhere in the image’s history does not authorize a particular brand’s use, and even a non-famous creator can bring a state right-of-publicity claim that a Lanham Act claim could not support.

Authorities and sources