Court of Appeal affirms summary judgment, holding that insurance policy does not cover infringement of models’ rights of publicity

GMSR’s insurer client issued a commercial general liability (CGL) policy to a nightclub.  Club employees obtained various models’ photographs and used them in social media posts promoting the club.  The models’ rights-management company sued the club, alleging that it had used the photographs without permission and infringed the models’ rights of publicity.

GMSR’s client filed a coverage suit and the trial court granted summary judgment, citing a broad, standard-form intellectual property exclusion that barred coverage for infringement of “copyright, patent, trademark, trade secret or other intellectual property rights.”  The Court of Appeal unanimously affirmed.  Agreeing with GMSR’s arguments, it held that the right of publicity is a well-recognized intellectual property right.  Therefore, the term excluding coverage for infringement of “other intellectual property rights” embraced claims for infringement of the right of publicity and barred coverage.  The Court of Appeal also held that the management company’s infringement complaint did not implicitly plead potentially covered claims for defamation, false light, trade dress, disparagement, or trade libel.

To read the Court of Appeal Opinion, click here:  AIX Specialty Insurance Company v. Timed Out, LLC (Oct. 5, 2023, B320255) 2023 WL 6475087 [Second District, Division Three].