The “Fiji Water Girl” is not just popping up in the background of red carpet photos. She is popping up on the docket of the Los Angeles County Superior Court thanks to a newly-filed lawsuit. Kelleth Cuthbert, a model-turned-Golden Globes internet sensation, has filed a right of publicity suit, asserting that Fiji Water Co. and its parent, the Wonderful Company, has taken to using her a photograph of her as part of a large-scale advertising campaign without her authorization.
31-year old Cuthbert asserts in her complaint that Fiji has co-opted her likeness for a "worldwide cardboard-cutout marketing campaign based on the use of [her] photograph, likeness and identity,” sans an agreement between the two parties, thereby running afoul of California state law, which protects against uses of a person's likeness for advertising purposes “without that person's prior consent.”
While the model claims that she did, in fact, discuss Fiji’s campaign, including its use of a cardboard cutout of a photo of her from the Golden Globes, her complaint asserts that they never actually reached a formal agreement.
The suit goes on to allege that Cuthbert, who was exclusively enlisted to hand out Fiji water bottles on the Golden Globes red carpet in early January, generated more than $12 million in "brand exposure" for the company in connection with her “photobombing” of celebrity photos and the social media mania that followed. However, she says she never agreed to serve as the face of a subsequent campaign for the Los Angeles-headquartered water company and has not been compensated for such additional use of her likeness.
Fiji, which calls the lawsuit "frivolous and entirely without merit,” asserts that “after the Golden Globes social media moment, we negotiated a generous agreement with Ms. Cuthbert that she blatantly violated. We are confident that we will prevail in court.”
As for Cuthbert, she released a statement on Friday via Instagram saying, "The decision to sue Fiji Water was a last resort for me, and I had hoped to discreetly resolve this dispute." She called out the company for using her image "without a contract, without consent and without payment, all of [its] own fincancial gain." She goes on to assert, "Models make a living off of the use of their image. No one would expect other professionals to work for free."
UPDATED (February 8, 2019): Fiji has formally responded to Cuthbert’s suit with claims of its own, as well as a request that the case be tossed out of court because in reality, the company alleges, it was Cuthbert who has run afoul of the law.
According to Fiji’s response, which was filed the Los Angeles County Superior Court on Friday, as first reported by the New York Post, despite what the model asserted in her complaint, the parties did, in fact, agree to enter into a one-year consulting agreement” in furtherance of which Cuthbert would act as a Fiji ambassador. In exchange for $90,000, Cuthbert would grant the water company the right to use her likeness, including a cardboard cut out image of her, in stores.
Things went south, according to Fiji when the model signed the agreement and took the only signed copy, which she later destroyed and then attempted to walk back on.
In addition to monetary damages, Fiji wants the court to dismiss Cuthbert’s claims, arguing that since the parties had a deal, she lacks grounds for filing suit in the first place.