NL-Maddy has sent me & given me permission to post the back and forth with her Lawyer Michael Fattorosi and Shelley. This is when Maddy left Pink Cross originally & wanted her info taken out of the Pink Cross marketing material. Fattorosi, btw, did this stuff for Maddy for FREE!
Feb 9, 2011
Pink Cross Foundation
Bakersfield, CA 93308
Attn: Legal Officer
Re: Madelyne ***** Violation of Cal. Civ. Code sec. 3344
Please be advised that I have been retained to represent the interests of Madelyne ***** in regards to your violation of her rights of publicity under California Civil Code section 3344. My client previously demanded that her images be removed from your websites on Thursday, February 3, 2011. It is now six days from her initial request and her images remain on http://www.thepinkcross.org as well as http://www.shelleylubben.com.
Please be advised that my client hereby demands that you immediately cease and desist your use of her image, likeness, real name and/or stage name. Any image, photograph or likeness should be immediately removed from any and all websites under your control. All images should also be deleted from your computer files. Further, delete any all references to my client enter by way of real name or stage name.
It has also come to my attention that Ms. Lubben is starring in a new movie titled “Out of the Darkness” produced by Anteroom Pictures. My client has informed me that it is quite likely that she was filmed for and her images and likeness were in fact used in this movie. If so, please also be advised that the use of her image and likeness in the “Out of the Darkness” movie would also be a violation of California Code section 3344 and you are also demanded to cease and desist the use of such. Her image and likeness are to be edited out the final draft of the movie prior to theatrical release. Failure to do so will be met with my client’s legal enforcement of her rights. We specifically reserve the right to seek an Temporary Restraining Order to prevent the distribution of the movie and or to join all parties that publicly perform the movie if it has been already been released to theaters.
The following pages and photographs needed to be removed within the next 24 hours. Please note this list is not exhaustive of all the images and references to my client. I strongly suggest that you review your site for any other images and/or references to my client.
Thank you for your anticipated cooperation in this matter. If you should have any questions please feel free to contact me directly. DO NOT contact my client directly.
Dear Mr. Fattorosi,
I have investigated my legal rights, and it is my belief that neither I nor Pink Cross Foundation is in violation of California Civic Cd. 3344. I have also been made aware that legal action on Ms. *******’ (Maddy) part would be subject to Anti-SLAPP protections.
Out of respect for ****** (Maddy) and her story, I have removed as many pictures of her as I can, but I have not removed group photos where Ms. Hernandez voluntarily worked with Pink Cross Foundation outreaches or testified at public hearings. Ms. Hernandez knew that the pictures were being taken and in fact posed for the pictures. She also allowed media such as Los Angeles Times, Associated Press and LA Weekly to interview her and take pictures of her at Pink Cross events (http://latimesblogs.latimes.com/lanow/2010/04/activists-to-target-porn-agents-in-latest-push-for-increased-regulation.html, http://blogs.laweekly.com/informer/2010/03/board_supports_condom_regs.php, and http://abcnews.go.com/Health/Business/story?id=8373966, and http://www.ocregister.com/opinion/government-240066-health-make.html?d96a349c52fc4f68eea46a47ccb3d360
In fact, ********* (Maddy) had been a key spokesperson for Pink Cross Foundation for almost two years. She was also aware of where the pictures were being posted, as she has had many of her pictures on our sites for almost two years. Not only has Ms. Hernandez been a key speaker for Pink Cross Foundation, she has also received major financial, emotional and physical help from us, which we were very happy to provide.
Executive Director of Pink Cross Foundation
Pink Cross Foundation
If in fact you are represented by counsel please forward this letter on to them.
My client appreciate your efforts but they have not gone far enough. All pictures/photographs and references to my client need to be removed IMMEDIATELY from all of the sites under your control.
Please do not analogize the Pink Cross or yourself to the Los Angeles Times, Associated Press and LA Weekly. They are news reporting agencies and or news publishers and are treated differently under the law.
Unless you or the Pink Cross have a signed model release from my client any verbal license that she may have provided to you or the Pink Cross to use her image and or name has now been effectively withdrawn and terminated. At this point in her life she no longer wishes to have any affiliation with you or your organizations and foundations.
She denies that she has received ANY financial, emotional or physical help from you or your foundation. Matter of fact she feels that her association with you and Pink Cross has been more detrimental then beneficial to her recovery.
As for your assertion that she would be subject to an Anti-SLAPP motion, we would actually welcome such. I do not believe that you would be successful since we are only seeking to enforce her rights and not to limit your ability to speak freely.
There is no transformative use of my client’s image or likeness and therefore you and the Pink Cross are merely trading off her name, image and likeness as a way to gain financial favor with your donors. Your First Amendment defenses are limited.
Also, if you are unsuccessful in your Anti-SLAPP motion you and Pink Cross would be liable to my client for attorney’s fees. We would ask you to consider the potential negative press implications from you and the Pink Cross counter-suing one of their former “spokespersons.”
She simply wants to be done and rid of this part of her life. She believes it is in her best interest towards recovery and a better future and life to permanently and completely separate from you and Pink Cross. Is that not one the fundamental principles of Pink Cross – to assist former performers to move forward and create a better life ? Now Maddy wishes to leave the Pink Cross and move on.
My client has taken the proper approach and is handling this matter privately and quietly. Based on the recent articles and stories I have seen about other former members on http://www.LukeisBack.com I would think that you would be appreciative of her efforts, not argumentative.
I look forward to your amicable anticipated cooperation in this matter without litigation or the attendant negative publicity it would generate.