Image: The RealReal

THE FASHION LAW EXCLUSIVE – Alexa Chung and a handful of runway models have joined to file suit against luxury re-sale site, The RealReal. According to the lawsuit, which was filed last week in the U.S. District Court for the Southern District of New York, a federal court in New York, Chung – along with models Anastasia Kolganova, Astrid Baarsma, Leona “Binx” Walton, Briley Jones, Crista Cober, Daniela Witt, Georgia Hilmer, Grace Hartzel, Hedvig Palm, Julie Flemming, and Lineisy Montero, among others (the “Plaintiffs”), all of whom are presented by Next Models – allege that The RealReal has used their images and likenesses without the authorization to do so.

According to the complaint, “Each of the Plaintiffs is well-known as a model throughout the United States and in other countries throughout the world [and] each of Plaintiffs have earned considerable sums in exchange for the use of their name, image, portrait or likeness in connection with the sale or promotion of products or services which Plaintiffs elected to associate themselves with on terms and conditions agreeable to them.”

As such they claim that San Francisco-based The RealReal – by way of the array of street style photos that it uses on its site and in its email marketing campaigns – is “trading on their image and likeness to market and promote the use of [The RealReal’s] services to sell products through [its] marketplace.”

The Plaintiffs allege that “their agent’s general counsel, Mr. Alan Kannof, Esq., issued and delivered a letter to [The RealReal], dated April 10, 2016 … notifying it of the unauthorized uses of the Plaintiffs’ images, and demanded that [it] cease and desist all such uses, and refrain from any and all future uses of Plaintiffs’ images.” They claim that even after sending that letter and a subsequent cease and desist, The RealReal continued to use some of the Plaintiffs’ images and likenesses in their email marketing.

The complaint continues on to note, “Each of Plaintiffs’ livelihood is based upon their respective image, persona, face and physical attributes and how such images may serve to promote or advertise the sale of products or services.” In case that’s night enough, the Plaintiffs claim that The RealReal “altered, mutilated and radically changed such public images of the Plaintiffs in a cynical effort to avoid liability under state and federal law, and with full knowledge that it had not sought or obtained permission from any of the Plaintiffs, or their authorized agent, to mutilate such images.”

Moreover, they assert that despite The RealReal being a “sophisticated licensor and licensee of intellectual property,” the company did not “seek the permission or consent from any of the Plaintiffs, nor their authorized agent, to alter any of the Plaintiffs’ images and likenesses.” Instead, the e-commerce site used the imagery without authorization and has “commercially benefited from its uses of the Plaintiffs’ names, images, and/or likenesses.”

While it appeared as though the parties might be able to resolve the matter prior to the Plaintiffs filing suit, but according to the suit, The RealReal “has failed to participate in meaningful settlement discussions, despite the Plaintiffs’ counsel’s requests.”

As such, the Plaintiffs have filed suit against The RealReal citing claims of violations of New York State Right of Publicity Law, and false designation of origin under §43(a) of the Lanham Act. They are seeking compensatory and exemplary damages, injunctive relief, interest, disbursements and costs.

UPDATED (September 14, 2017): Following the filing of an amended complaint by the models in May, the parties appear to have settled their differences out of court. According to a joint stipulation to dismiss the case with prejudice, “The parties, through their respective attorneys of record, [stipulate] that this entire action, and all claims and counterclaims contained therein, have been settled by the parties, and shall be dismissed with prejudice,” with each side bearing its own attorneys’ fees and costs. Any settlement that they entered remaining confidential.

* The case is Chung et al v. The RealReal, Inc., 1:17-cv-00849 (SDNY).