Miami Velvet Case a Reminder: Don’t Use Images to Which You Don’t Have Rights

MIAMI, Fla. – A federal jury in Miami has determined Miami Velvet, a swinger’s club, must pay $892,500 to 32 women whose images (and in some cases, their names) were used without their permission to promote the club.

The jury’s award of damages comes two years after U.S. District Judge Jose Martinez found in favor of the women in 2017, determining the club was liable for false advertising. The models had sought damages totaling $5.3 million, significantly more than the jury awarded Monday.

In many respects, the case is reminiscent of incidents in which adult dating sites have used models’ images without their permission – with the difference being that in the case of Miami Velvet, some of the models’ names were used as well, falsely suggesting they were members of the swingers’ club, whereas in the adult dating cases, the sites often tried to pass off professional adult performers as amateurs and/or site members.

Among the high-profile models whose images were used by Miami Velvet were Joanna Krupa, who has appeared on “The Real Housewives of Miami” and “Dancing with the Stars”; Cora Skinner, who has appeared in Maxim and Muscle & Fitness in addition to several television roles; and Jaime Edmondson Longoria, a former Boca Raton police officer and Miami Dolphins cheerleader. Krupa was awarded $65,000 by the jury, while Skinner and Longoria were each awarded $32,500.

While the models had sought considerably more damages than the jury awarded, the plaintiffs’ lead attorney Naim Surgeon said he thought the “jury’s decision was fair.”

“I think they took into account that these women were entitled to say yes or no to the job, and ultimately, they wouldn’t have said yes,” had the club asked for permission to use their images, Surgeon told the Miami Herald.

In his closing argument, Surgeon raised consent as a central issue in the case.

“In 2019, we respect a woman’s right to say yes or no: consent matters and should matter to all of us. As decent people, we understand that’s how we want society to operate: consent requires permission first,” Surgeon said, adding “These aren’t just pretty women. They’re entrepreneurs, mothers, businesswomen.”

Joy Dorfman, manager of a company called My Three Yorkies, LLC, which in turn runs Miami Velvet, is among those liable to the models. She’s married to former hedge fund manager and professional poker player Randy Dorfman, who acquired Miami Velvet in 2010.

In their defense, the Dorfmans relied on an excuse which should ring very familiar to anyone in the adult industry who has ever seen their own content used in marketing and advertising materials or site tours belonging to another company – the tried and true “rogue designer” excuse. The Dorfmans said they had nothing to do with the misuse of the images, which they claimed were posted by a third party contracted to run the club’s social media operations.

While the rogue designer excuse might sound good on paper, absent a very specific set of contractual clauses and a fact set which clearly leaves the liability at the doorstep of the designer, the legal principle of agency generally puts the person who employs the designer on hook.

In Miami Velvet’s case, even the club’s own attorney, Luke Lirot, reportedly said it was “a no brainer” that his clients were liable for using the images – but that the models were seeking far too much money in their complaint.

In any event, the case is a reminder for adult business of all stripes: Take care when selecting designers to create your marketing and advertising materials and to whom you entrust operation of your social media accounts — and never imply an endorsement from a person, or association with them, that isn’t there.

Where images are concerned, if it’s feasible, require those third parties to use only images you provide to them and which you clearly, unambiguously have the right to use. Safest of all is to require designers, social media account managers, marketing personnel and others to use only images produced by you or your company and for which you or your company is the sole copyright holder.

As for stating, or even merely implying that a celebrity (or any other person, really) is associated with your business or has endorse it, don’t do this unless (a) it’s true AND (b) you have a solid, signed contract with them that explicitly permits you to disclose and claim the association or endorsement.