'Fiji Water Girl' could have a lucrative case if she can prove her claims

The Fiji Water model who photobombed her way from the red carpet to social media super stardom launched a lawsuit against the company this week in Los Angeles Superior Court, The Blast reported.

Model, Kelleth Cuthbert, whose real name is Kelly Steinbach, says Fiji created an unauthorized marketing campaign using her image. Fiji, she alleges, seized upon her viral fame, and made life-size cardboard cutouts from photos taken of her while she was working for the company promoting its water for the January 6 Golden Globes.

If the matter heads to court, the answers to several questions will determine the fate of Cuthbert’s lawsuit. Those questions include whether Fiji’s use of Cuthbert’s image went beyond the scope of her original contract, whether a subsequent valid agreement was made between the parties, and whether Cuthbert sustained any damages.

According to Cuthbert, Fiji's post-Globes cutout campaign was initiated without her consent. She disputes that a subsequent contract was ever made, and seeks monetary compensation, a cut of the company’s profits derived from the alleged unauthorized use of her image, and punitive damages.

California law could be in her favor

In a statement to Yahoo Finance Fiji said, “This lawsuit is frivolous and entirely without merit. 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.”

Related: Fiji Water Girl

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IMAGE DISTRIBUTED FOR FIJI WATER - Jamie Lee Curtis at the 76th annual Golden Globe® Awards with FIJI Water on Sunday, Jan. 6, 2019 in Beverly Hills, Calif. (Photo by Matt Sayles/Invision for FIJI Water/AP Images)
Idris Elba at the 76th annual Golden Globe® Awards with FIJI Water on Sunday, Jan. 6, 2019 in Beverly Hills, Calif. (Photo by Matt Sayles/Invision for FIJI Water/AP Images)
Lucy Boynton at the 76th annual Golden Globe® Awards with FIJI Water on Sunday, Jan. 6, 2019 in Beverly Hills, Calif. (Photo by Matt Sayles/Invision for FIJI Water/AP Images)
Richard Madden at the 76th annual Golden Globe® Awards with FIJI Water on Sunday, Jan. 6, 2019 in Beverly Hills, Calif. (Photo by Matt Sayles/Invision for FIJI Water/AP Images)
Holly Taylor at the 76th annual Golden Globe® Awards with FIJI Water on Sunday, Jan. 6, 2019 in Beverly Hills, Calif. (Photo by Matt Sayles/Invision for FIJI Water/AP Images)
FIJI Water at the 76th annual Golden Globe® Awards on Sunday, Jan. 6, 2019 in Beverly Hills, Calif. (Photo by Matt Sayles/Invision for FIJI Water/AP Images)
Amber Heard at the 76th annual Golden Globe® Awards with FIJI Water on Sunday, Jan. 6, 2019 in Beverly Hills, Calif. (Photo by Matt Sayles/Invision for FIJI Water/AP Images)
Camilla Belle at the 76th annual Golden Globe® Awards with FIJI Water on Sunday, Jan. 6, 2019 in Beverly Hills, Calif. (Photo by Matt Sayles/Invision for FIJI Water/AP Images)
LOS ANGELES, CA - JANUARY 06: Caitriona Balfe attends FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: William H. Macy and Sofia Grace Macy attend FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Susan Geston (L) and Jeff Bridges attend FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Alyssa Milano attends FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Julianne Moore attends FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Taraji P. Henson attends FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Kaley Cuoco attends FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Phil Lord (L) and Christopher Miller attend FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: (L-R) Judith Light and Connie Britton FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Sandy Jacobson (L) and Nina Jacobson attend FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: (L-R) Tony Shalhoub and Marin Hinkle attend FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Mia Swier (L) and Darren Criss attend FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Alison Brie attends FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Heidi Klum (L) and Tom Kaulitz attend FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Tom Kaulitz (L) and Heidi Klum attend FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Terry Crews (R) and Rebecca King-Crews attend FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Amy Adams attends FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Molly Sims attends FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Emmy Rossum attends FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Judy Greer attends FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Lucy Boynton attends FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Cody Fern (L) and Richard Madden attend FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Sabrina Dhowr (L) and Idris Elba attend FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Richard Madden attends FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Camilla Belle attends FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Kiki Layne attends FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
LOS ANGELES, CA - JANUARY 06: Irena Medavoy (L) and Carly Steel attend FIJI Water at the 76th Annual Golden Globe Awards on January 6, 2019 at the Beverly Hilton in Los Angeles, California. (Photo by Stefanie Keenan/Getty Images for FIJI Water)
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According to Cuthbert, Fiji asked her to meet at the company's Los Angeles office in an attempt to negotiate a subsequent deal after she learned that the cutouts had been installed in stores around the city. Cuthbert claims the company offered her gifts as a bargaining chip to relinquish her rights to the name “Fiji water girl,” and pressured her into shooting a video to simulate signing on as a Fiji brand ambassador.

If Cuthbert’s claims are proven, she may have a viable and lucrative case. In California, a person’s likeness, photo, or voice cannot be used for commercial purpose without their prior consent, and the state’s laws permit aggressively punishing violators.

Cuthbert claims the unauthorized use of her likeness damaged her "peace, happiness, feelings, goodwill, professional standing, and future publicity value." In addition to compensatory damages for these types of claims, California courts can also award successful plaintiffs with profits derived from unauthorized use.

Fiji, a private, Los Angeles-based company, is said to have benefited to the tune of about $12 million in brand exposure from Cuthbert’s Golden Globe photobombs, alone. If she prevails on her claim that the cutouts were unauthorized, Cuthbert is entitled to all of the company’s profits attributable to the cutout campaign.

Yahoo Finance requested clarification from Fiji concerning the scope and duration of the company’s original and any subsequent contracts with Cuthbert, as well as the nature of the video alleged in Cuthbert’s complaint, and has not received a response.

 

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