Lopez et al v. Pitner et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE

ARIANNY CELESTE LOPEZ, et al., )
)
Plaintiffs, )
)
v. ) No.: 3:25-CV-184-TAV-JEM
)
THOMAS J. PITNER, individually, and as )
an officer, director, shareholder, member, )
and/or principal of JOHN DOE ENTITY )
d/b/a/ MTM’S BAR and JOHN DOE )
ENTITY d/b/a/ MTM’S BAR, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
This civil action is before the Court on defendant Thomas J. Pitner’s Motion for
Partial Dismissal [Doc. 18]. Plaintiffs have not responded, and the time for doing so has
passed. See E.D. Tenn. L.R. 7.1(a). For the reasons below, Pitner’s Motion for Partial
Dismissal [Doc. 18] will be GRANTED.
I. Background

Plaintiffs bring this action for damages and injunctive relief due to defendants’
alleged misappropriation, alteration, and unauthorized publication of images of plaintiffs
to promote their strip club, MTM’s Bar (“MTM”) [See Doc. 1]. Pitner is the principal,
owner and/or Chief Executive Officer of MTM [Id. ¶¶ 1, 8, 30]. Defendant John Doe Entity
is a company that operates MTM [Id. ¶¶ 7, 29]. Plaintiffs are well-known professional
models who earn their livelihood modeling and licensing their images to companies,
magazines, and individuals for advertising products and services [Id. ¶¶ 11–28, 31].
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Plaintiffs allege that their modeling careers “place a high degree of value on their good will
and reputation,” which is essential to maximize their earnings, book modeling contracts,
and establish their individual brands [Id. ¶ 32].
Ultimately, plaintiffs allege that defendants misappropriated and altered their
images without their consent to make it seem like they endorsed, were associated with, or
were employed by defendants [Id. ¶¶ 33–35]. Plaintiffs allege that they have incurred
substantial monetary damage and harm to reputation, and they have not received any
remuneration for defendants’ use of their images [Id. ¶ 36]. Plaintiffs also assert that
defendants misappropriated their advertising ideas by taking images from plaintiffs’
personal social media pages, which they use to market to clients, grow their fan bases, and
build their brands [Id. ¶ 37]. Plaintiffs attach copies of the alleged misappropriated images
to the complaint [Doc. 1-2].
On April 29, 2025, plaintiffs filed this action alleging false association and false
advertising under § 43 of the Lanham Act (Counts 1 and 2) [Doc. 1 ¶¶ 113–44]. Plaintiffs
also allege violations of the Tennessee Personal Rights Protection Act of 1984 (“TPRPA”)
(Count 3), the common law right of publicity (Count 4), and the Tennessee Consumer
Protection Act (“TCPA”) (Count 5) [Id. ¶¶ 113–84]. Finally, plaintiffs assert claims of
defamation (Count 6), negligence/respondeat superior (Count 7), conversion (Count 8),
unjust enrichment (Count 9), and quantum meruit (Count 10) [Id. ¶¶ 185–223].
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1
Pitner does not seek dismissal of the following claims: violations of the Lanham Act
(Counts 1 and 2); violations of the TPRPA (Count 3); and a single claim for defamation asserted
by plaintiff Eva Pepaj (Count 6) [Doc. 18, pp. 2, 15].
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II. Standard of Review

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” “Although this standard does not require ‘detailed factual allegations,’ it does
require more than ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action.’” Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Furthermore, “a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570). This requires “more than a sheer
possibility that a defendant has acted unlawfully.” Id. A complaint that pleads facts
“merely consistent with” liability, “stops short of the line between possibility and
plausibility of entitlement to relief.” Id. (internal quotation marks omitted). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Id. Finally, “a claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. at 678.
In reviewing a motion to dismiss under Rule 12(b)(6), the Court “must construe the
complaint in a light most favorable to plaintiffs, accept all well-pled factual allegations as
true, and determine whether plaintiffs undoubtedly can prove no set of facts in support of
those allegations that would entitle them to relief.” Bishop v. Lucent Techs., Inc., 520 F.3d
516, 519 (6th Cir. 2008). However, the Court need not accept legal conclusions or
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unwarranted factual inferences as true. Montgomery v. Huntington Bank, 346 F.3d 693,
698 (6th Cir. 2003) (quoting Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.
1987)).
III. Analysis

A. Matters Outside the Pleadings

Pitner contends that the Court may consider the images attached to plaintiffs’
complaint in ruling on his motion to dismiss because the images give rise to each of
plaintiffs’ claims and are central to the allegations in the complaint [Doc. 18, pp. 2–3].
“Generally, courts may consider only the factual allegations in the pleadings when
deciding a Rule 12(b)(6) motion to dismiss.” Tebault v. United States, 778 F. Supp. 3d
912, 917 (W.D. Ky. 2025) (citing Bates v. Green Farms Condo. Ass’n, 958 F.3d 470, 483
(6th Cir. 2020)). However, the Sixth Circuit has held that “[w]hen a court is presented with
a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits attached thereto,
public records, items appearing in the record of the case and exhibits attached to [the]
defendant’s motion to dismiss so long as they are referred to in the Complaint and are
central to the claims contained therein.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528
F.3d 426, 430 (6th Cir. 2008) (emphasis added).
Here, the social media posts attached to the complaint [Doc. 1-2] are referred to in
the complaint and are central to the claims therein. Specifically, plaintiffs’ claims are
premised on defendants’ alleged misappropriation and publication of plaintiffs’ images on
social media [See Doc. 1]. Thus, the social media posts are a central fact at issue, and the
Court finds it appropriate to consider the images attached to the complaint in the context
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of this Rule 12(b)(6) motion without converting the motion to one for summary judgment.
See Bassett, 528 F.3d at 430.
B. Conversion, Unjust Enrichment, and Quantum Meruit Claims

Pitner first argues that plaintiffs’ state law claims for conversion, unjust enrichment,
and quantum meruit are pre-empted by the Copyright Act regardless of whether any of the
images at issue are copyrighted [Doc. 18, pp. 6–7]. Pitner argues that the facts alleged by
plaintiffs fall within the scope of 17 U.S.C. § 106, and the subject matter giving rise to
plaintiffs’ claims comes within the subject matter of copyright as tangible, pictorial works
[Id. at 9]. Lastly, Pitner contends that plaintiffs assert a right equivalent to one protected
by the Copyright Act because their claims depend on defendants’ failure to compensate
them for the use of their images [Id. at 10–11].
The Sixth Circuit has found that “Section 301 of the Copyright Act broadly preempts
state law claims, and federal law vests exclusive jurisdiction over such preempted
copyright claims in the federal courts.” Ritchie v. Williams, 395 F.3d 283, 285 (6th Cir.
2005). Moreover, “[t]he Copyright Act is unusually broad in its assertion of federal
authority.” Id. at 286. “Rather than sharing jurisdiction with the state courts as is normally
the case, the statute expressly withdraws from the state courts any jurisdiction to enforce
the provisions of the Act[.]” Id. “This is a statement of the doctrine of complete
preemption which recharacterize[s] a state law complaint . . . as an action arising under
federal law.” Wells v. Chattanooga Bakery, Inc., 448 S.W.3d 381, 387 (Tenn. Ct. App.
2014) (internal quotation marks and citation omitted). Section 301 of the Copyright Act
provides that:
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(a) On and after January 1, 1978, all legal or equitable rights that are equivalent
to any of the exclusive rights within the general scope of copyright as
specified in § 106 in works of authorship that are fixed in a tangible medium
of expression and come within the subject matter of copyright as specified
by sections 102 and 103, whether created before or after that date and
whether published or unpublished, are governed exclusively by this title.
Thereafter, no person is entitled to any such right or equivalent right in any
such work under the common law or statutes of any State.

(b) Nothing in this title annuls or limits any right or remedies under the common
law or statutes of any State with respect to—

(1) subject matter that does not come within the subject matter of
copyright as specified by sections 102 and 103, including works of
authorship not fixed in any tangible medium of expression; or

(2) any cause of action arising from undertakings commenced before
January 1, 1978;

(3) activities violating legal or equitable rights that are not equivalent to
any of the exclusive rights within the general scope of copyright as
specified by section 106; or

(4) [s]tate and local landmarks, historic preservation, zoning, or building
codes, relating to architectural works protected under section
102(a)(8).

17 U.S.C. § 301. At the outset, the Court notes that 17 U.S.C. § 301(b)(2) does not apply
because plaintiffs have not alleged “any cause of action arising from undertakings
commenced before January 1, 1978[.]” Id. § 301(b)(2). Further, 17 U.S.C. § 301(b)(4)
does not apply because plaintiffs have not alleged any facts with respect to “[s]tate and
local landmarks, historic preservation, zoning, or building codes[.]” Id. § 301(b)(4).
With this statutory framework in mind, the Court must address whether “(1) the
work is within the scope of the ‘subject matter of copyright,’ as specified in 17 U.S.C.
§ 102, 103’ known as the ‘subject matter requirement’; and ‘(2) the rights granted under
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state law are equivalent to any exclusive rights within the scope of federal copyright as set
out in 17 U.S.C. § 106’ known as the ‘equivalency’ requirement.” ChampionX, LLC v.
Resonance Sys., Inc., 726 F. Supp. 3d 786, 828 (E.D. Tenn. 2024) (quoting Wrench LLC v.
Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001)).
1. Subject Matter Requirement

“The subject matter requirement of § 301 ‘is satisfied if a work fits within the
general subject matter of § 102 and 103 of the Copyright Act, regardless of whether it
qualifies for copyright protection.” Stanford v. Ceasar’s Ent., Inc., 430 F. Supp. 2d 749,
755 n.4 (W.D. Tenn. 2006) (quoting Stromback v. New Line Cinema, 384 F.3d 283, 300
(6th Cir. 2004)). “Section 102 of the Act provides that copyright protection subsists in
‘original works of authorship fixed in any tangible medium of expression . . . from which
they can be perceived, reproduced, or otherwise communicated.” Id. (quoting 17 U.S.C.
§ 102(a)). “Pictorial, graphic, and sculptural works” qualify as “works of authorship”
subject to copyright protection. 17 U.S.C. § 102(a)(5).
Here, plaintiffs allege that defendants unlawfully used their images to gain potential
clients and promote MTM [Doc. 1 ¶¶ 37, 210, 214, 222]. Thus, the images at issue here
fall within the subject matter requirement of 17 U.S.C. § 301 because they are photographs
that were allegedly altered and posted by defendants on social media. See 17 U.S.C. § 101
(defining “pictorial, graphic, and sculptural works” to include photographs); 17 U.S.C.
§ 103(a) (providing that the subject matter of copyright includes derivative works); Wells,
448 S.W.3d at 388 (finding that a photograph included in a brochure and later reproduced
onto derivative works fell within the subject matter requirement of 17 U.S.C. § 301).
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Moreover, it is immaterial whether any of the images at issue were copyrighted. See
Stanford, 430 F. Supp. 2d at 759 n.4 (“Whether or not a copyright is registered with the
United States Copyright Office has no bearing on the question of preemption under 17
U.S.C. § 301” (citation omitted)). Accordingly, plaintiffs’ claims of conversion, quantum
meruit, and unjust enrichment satisfy the subject matter requirement for preemption.
2. Equivalency Requirement
Turning to the second requirement, courts apply “a functional test to determine
whether the state law right at issue is equivalent to any of the exclusive rights under Section
106 of the Copyright Act.” Stromback, 384 F.3d at 301 (internal quotation marks omitted).
The Sixth Circuit has stated:
Equivalency exists if the right defined by state law may be abridged by an
act which in and of itself would infringe one of the exclusive rights.
Conversely, if an extra element is required instead of or in addition to the
acts of reproduction, performance, distribution or display in order to
constitute a state-created cause of action, there is no preemption, provided
that the extra element changes the nature of the action so that it is
qualitatively different from a copyright infringement claim.

Id. at 301 (quoting Wrench, 256 F.3d at 456).
a. Conversion
Here, plaintiffs allege that defendants committed unlawful conversion of their image
and likeness [Doc. 1 ¶ 210]. “Conversion is the wrongful appropriation of another’s
tangible property; an action for the conversion of intangible personal property is not
recognized in Tennessee.” Wells, 448 S.W.3d at 392 (citing Ralph v. Pipkin, 183 S.W.3d
362, 368 (Tenn. Ct. App. 2005)). In Wells, the plaintiff alleged that the defendants
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“converted the likeness, image and/or picture of [him] to their own use, thereby injuring
[him]” and “are liable to [him] for this conversion in compensatory and punitive damages.”
Id. There, the court found that the plaintiff’s conversion claim was preempted by the
Copyright Act because it “center[ed] on intangible rights in the photograph and [sought]
monetary damages for [the defendants’] use of the photograph on various objects (as
opposed to an allegedly unlawful retention of the photograph or objects themselves).” Id.
Similarly, the complaint here alleges that plaintiffs had exclusive ownership of “all
right, title[,] and interest in their image and likeness” and defendants “converted
[p]laintiffs’ property rights in their image and likeness for their own use and financial gain”
[Doc. 1 ¶¶ 208–09]. As a result, plaintiffs seek damages from defendants’ unlawful
conversion of their “image and likeness” [Id. ¶ 210]. Thus, plaintiffs’ conversion claims
are premised on defendants’ alleged unauthorized use of their “image and likeness,” which
are intangible property rights, rather than on conversion of a tangible object or photograph
[Id.]. See Wells, 448 S.W.3d at 392 (finding that equivalency was met where the plaintiff’s
claim centered on intangible rights in a photograph).
Given that Tennessee law does not recognize a claim for conversion of intangible
personal property, the rights asserted by plaintiffs are “abridged by an act which in and of
itself would infringe one of the exclusive rights.” Stromback, 384 F.3d at 301 (quoting
Wrench, 256 F.3d at 456). Put another way, plaintiffs’ conversion claims do not protect
any property interest apart from the exclusive rights governed by the Copyright Act. Since
plaintiffs’ claims for conversion satisfy the subject matter and equivalency requirements,
they are preempted by the Copyright Act and will be DISMISSED.
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b. Unjust Enrichment and Quantum Meruit
Plaintiffs also allege claims of unjust enrichment and quantum meruit [Doc. 1
¶¶ 211–23]. Under Tennessee law, “[a]ctions brought upon theories of unjust enrichment,
quasi contract, contracts implied in law, and quantum meruit are essentially the same.”
AMISUB (SFH), Inc. v. Cigna Health and Life Ins. Co., 681 F. Supp. 3d 842, 851 (W.D.
Tenn. 2023) (emphasis in original) (internal quotation marks and citations omitted); see
also Doe v. Univ. of the S., 687 F. Supp. 2d 744, 762 (E.D. Tenn. 2009) (analyzing the
plaintiff’s unjust enrichment and contract implied in law claims together).
With respect to unjust enrichment, plaintiffs allege that defendants “benefit[ed]
commercially due to their purported association with, employment of, and/or endorsement
by [p]laintiffs” [Doc. 1 ¶¶ 214–15]. Specifically, plaintiffs assert that defendants were
enriched by their unauthorized control over and publication of plaintiffs’ images because
the images helped defendants attract clients to MTM [Id. ¶ 216]. As for quantum meruit,
plaintiffs allege that defendants availed themselves to the benefit of being associated with
plaintiffs, and thus, they are “entitled to reasonable compensation for [d]efendant’s
unauthorized use of their image and likeness” [Id. ¶¶ 220–23].
“Courts generally find that claims for unjust enrichment and quantum meruit are
preempted by the Copyright Act to the extent they are based on a defendant’s violation of
an exclusive right protected by the copyright law.” Recursion Software, Inc. v. Interactive
Intel., Inc., 425 F. Supp. 2d 756, 769 (N.D. Texas 2006); Asunto v. Shoup, 132 F. Supp. 2d
445, 453 (E.D. La. 2000) (“Claims for unjust enrichment usually are held to be pre-empted
by the Copyright Act.”); Flaherty v. Filardi, 388 F. Supp. 2d 274, 290 (S.D.N.Y. 2005)
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(determining that plaintiffs’ unjust enrichment and quantum meruit claims were
“preempted to the extent they address precisely the same issues as [the plaintiff’s]
copyright claims”); Video Pipeline, Inc. v. Buena Vista Home Ent., Inc., 210 F. Supp. 2d
552, 567 (D.N.J. 2002) (noting that “unjust enrichment claims relating to the use of
copyrighted material are generally preempted”). With respect to equivalency, the Sixth
Circuit has stated:
For the purpose of the preemption analysis, there is a crucial difference
between a claim based on quasi-contract, i.e., a contract implied in law, and
a claim based upon a contract implied in fact. In the former, the action
depends on nothing more than the unauthorized use of the work. Thus, an
action based on a contract implied in law required no extra element in
addition to an act of reproduction, performance, distribution or display,
whereas an action based on a contract implied in fact requires the extra
element of a promise to pay for the use of the work which is implied from
the conduct of the parties.

Wrench LLC, 256 F.3d at 459. In Wrench, the Sixth Circuit determined that a state law
contract claim was not preempted by the Copyright Act because it was premised on a
promise to pay for the use of the work. Id. at 456–57. The Sixth Circuit clarified that “[i]f
the promise amounts only to a promise to refrain from reproducing, performing,
distributing[,] or displaying the work, then the . . . claim is preempted.” Id. at 457.
In this case, plaintiffs’ unjust enrichment and quantum meruit claims rest on the
assertion that defendants used their images without authorization and without paying them
[Doc. 1 ¶¶ 214–15, 217, 221–23]. Unlike in Wrench, plaintiffs here have not alleged any
facts demonstrating that defendants promised to pay for the use of their images [Id.]. See
Wrench, 256 F.3d at 456–57. Given that plaintiffs have not alleged that there was a contract
between the parties or a promise to pay for the use of the images, the Copyright Act is the
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only source entitling plaintiffs to enforce their quasi-contract claims. See Recursion
Software, 425 F. Supp. 2d at 769 (“In the absence of a contract between the parties, the
only possible source entitling [the plaintiff] to enforce its quasi-contractual claims is the
Copyright Act.”).
Therefore, the Court finds that there is no distinction between the rights asserted by
plaintiffs and the exclusive rights granted under the Copyright Act because plaintiffs’
unjust enrichment and quantum meruit claims depend on defendants’ failure to compensate
them for the alleged commercial exploitation of their images [Id. ¶ 217]. See Wells, 448
S.W.3d at 391 (finding that the plaintiff’s unjust enrichment claim was preempted by the
Copyright Act because his claim depended only on the defendants’ “purported failure to
compensate him for the allegedly unauthorized reproduction of the photograph” at issue).
In other words, plaintiffs’ unjust enrichment and quantum meruit claims require no extra
element “in addition to the acts of reproduction, performance, distribution or display[.]”
Stromback, 384 F.3d at 301 (quoting Wrench, 256 F.3d at 456). Accordingly, plaintiffs’
claims for unjust enrichment and quantum meruit are preempted by the Copyright Act, and
they will be DISMISSED.
C. Common Law Right of Publicity Claim

Next, Pitner argues that plaintiffs’ common law right of publicity claims should be
dismissed because the TPRPA supplants the common law right of publicity [Doc. 18, pp.
11–13]. Pitner cites Marshall v. ESPN Inc., 111 F . Supp. 3d 815, 824 (M.D. Tenn. 2015)
for the proposition that the TPRPA and the common law are co-extensive, and the statutory
provision must prevail when there is conflict [Id. at 12].
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“Tennessee’s common law acknowledges a ‘property right in the use of one’s name,
photograph or likeness.’” Marshall, 111 F. Supp. 3d at 824 (quoting Polygram Records,
Inc. v. Legacy Ent. Grp., LLC, 205 S.W.3d 439, 445 (Tenn. Ct. App. 2006)). Additionally,
“Tennessee provides a statutory protection to that right.” Id. Specifically, “the Tennessee
Legislature codified the right of publicity in 1984 when it enacted the [TPRPA].” Id.
(quoting Gauck v. Karamian, 805 F. Supp. 2d 495, 500 (W.D. Tenn. 2001)). The TPRPA
provides that:
[a]ny person who knowingly uses or infringes upon the use of an individual’s
name, photograph, voice, or likeness in any medium, in any manner directed
to any person other than such individual, for purposes of advertising
products, merchandise, goods, or services, or for purposes of fundraising,
solicitation of donations, purchases of products, merchandise, goods, or
services, without such individual’s prior consent, . . . is liable to a civil action.

Tenn. Code Ann. § 47-25-1105(a)(1) (emphasis added). The TPRPA “was intended to
create an inheritable property right for those people who use their names or likenesses in a
commercial manner, such as an entertainer or sports figure—someone who uses his or her
name for endorsement purposes.” Marshall, 111 F. Supp. 3d at 824 (internal quotation
marks and citations omitted).
In Marshall, several collegiate student-athletes filed a class action against athletic
conferences, broadcasting networks, and licensing agencies, alleging that the defendants’
use of their “names, images, and likenesses” violated their publicity rights. Id. at 821. The
plaintiffs asserted violations of the right to publicity under the Tennessee common law and
the TPRPA. Id. at 823. Ultimately, the court found that “the TPRPA supplants whatever
right to publicity that may exist under the common law.” Id. at 824. The court reasoned
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that “the statutory and common law rights to publicity are ‘co-extensive’.” Id. (citing
Moore v. Weinstein Co., LLC, No. 3:09-CV-166, 2012 WL 1884758, at *30 (M.D. Tenn.
May 23, 2012); and then citing Gauck, 805 F. Supp. 2d at 500 n. 5). Further, the court
noted that “[w]hen there is a conflict between the common law and a statute, the
provision[s] of the statute must prevail.” Id. at 825 (internal quotation marks and citations
omitted).
The Court finds that Marshall is instructive in this case. Marshall, 111 F. Supp. 3d
at 824. Like in Marshall, plaintiffs here bring claims under both the TPRPA and the
common law right of publicity based on the unauthorized use of their “names, images, and
likenesses” [Doc. 1 ¶¶ 145–72]. Marshall, 111 F. Supp. 3d at 821–23. Plaintiffs’ common
law claims are based on the same conduct as their statutory claims, namely, defendants’
unauthorized publication of plaintiffs’ image and likeness on defendants’ social media
accounts [Doc. 1 ¶¶ 145–72]. Moreover, like in Marshall, plaintiffs’ TPRPA and common
law claims seek to protect the same underlying interest—the use of their names and
likenesses in a commercial manner. See Marshall, 111 F. Supp. 3d at 824; see also Tenn.
Code Ann. § 47-25-1105(a)(1) (protecting “the use of an individual’s name, photograph,
voice, or likeness” in a commercial manner). In addition, plaintiffs have not alleged any
independent right to publicity apart from the use of their name, image, and likenesses [See
Doc. 1 ¶¶ 145–72].
Given that the TPRPA and common law right of publicity are “co-extensive” as
applied to the conduct alleged here, the Court finds that plaintiffs’ common law right of
publicity claims are subsumed by the TPRPA. See Marshall, 111 F. Supp. 3d at 824 (citing
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Moore, 2012 WL 1884758, at *30; and then citing Gauck, 805 F. Supp. 2d at 500 n. 5).
Therefore, plaintiffs’ common law right of publicity claims will be DISMISSED.
D. TCPA Claims

In addition, Pitner contends that plaintiffs’ T C PA claims fail because plaintiffs are
not “consumers” within the meaning of the TCPA [Doc. 18, p. 13]. Specifically, Pitner
argues that plaintiffs have not alleged that they acted as consumers in any transaction with
Pitner or that they acquired any goods, services, or property from him [Id. at 13–14]. As
such, Pitner argues that plaintiffs have not stated a claim upon which relief can be granted
as to their TCPA claims [Id.].
The TCPA serves “[t]o protect consumers and legitimate business enterprises from
those who engage in unfair or deceptive acts or practices in the conduct of any trade or
commerce in part or wholly within this state[.]” Tenn. Code Ann. § 47-18-102(2)
(emphasis added). Several courts have similarly noted that the TCPA aims to protect
consumers. See Killingsworth v. Ted Russell Ford Inc., 205 S.W.3d 406, 410 (Tenn. 2006)
(noting that the TCPA is meant “to protect consumers and legitimate business enterprises”
(citation omitted)); see also Tucker v. Sierra Builders, 180 S.W.3d 109, 114 (Tenn. Ct. App.
2005) (“[O]ne of the express purposes of the TCPA is to provide additional, supplementary
state law remedies to consumers victimized by unfair or deceptive business acts or practices
that were committed in Tennessee in whole or in part.”). Moreover, “Tennessee courts
have consistently held, ‘legitimate business enterprises’ under section 47-18-102(2) only
include those acting as consumers’.” LP Env’t, LLC v. Delfasco, LLC, No. 3:14-CV-2167,
2015 WL 13145789, at *2 (M.D. Tenn. July 23, 2015). The TCPA provides that:
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“Consumer” means any natural person who seeks or acquires by purchase,
rent, lease, assignment, award by chance, or other disposition, any goods,
services, or property, tangible or intangible, real, personal or mixed, and any
other article, commodity, or thing of value wherever situated or any person
who purchases or to whom is offered for sale a franchise or distributorship
agreement or any similar type of business opportunity.

Tenn. Code Ann. § 47-18-103(6).

Here, the basis for plaintiffs’ TCPA claim is that defendants operated their website
and social media accounts to promote MTM, attract clients, and generate revenue [Doc. 1
¶ 174]. As such, plaintiffs allege that defendants’ publication of plaintiffs’ images “was
consumer-oriented in nature and occurred in the trade and commerce with the State of
Tennessee” [Id. ¶ 175]. However, plaintiffs have not set forth any facts demonstrating that
they are consumers within the meaning of the TCPA or that they sought to acquire any
goods, services, property, or other things of value from defendants. See Tenn. Code Ann.
§ 47-18-103(6).
Rather, plaintiffs allege that defendants used their image and likeness without
authorization. See Wagner v. Fleming, 139 S.W.3d 295, 301 (Tenn. Ct. App. 2004) (finding
that the plaintiff was not a consumer within the meaning of the TCPA because “he was not
seeking to purchase anything from [the defendants]”); see also Hood Land Tr. v. Hastings,
No. M2009-2625-COA-R3-CV, 2010 WL 3928647, at *9 (Tenn. Ct. App. 2010)
(determining that the plaintiff was not a consumer under the TCPA because he was a seller).
Given that plaintiffs have not set forth any facts alleging that they acted as consumers in
any transaction with defendants, plaintiffs’ TCPA claims will be DISMISSED.

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E. Defamation Claims

Pitner also moves to dismiss plaintiffs’ defamation claims as time-barred under the
one-year statute of limitations for libel claims in Tennessee, except for one image depicting
Pepaj that allegedly falls outside of the statutory period [Doc. 18, p. 15].
2

“In Tennessee, the tort of defamation can take either the form of libel or slander, and
‘[a] libel action involves written defamation and a slander action involves spoken
defamation’.” Walker v. Seyfer, No. 2:24-CV-223, 2025 WL 3211223, at *2 (E.D. Tenn.
Nov. 17, 2025). “For libel, the statute of limitations is one year ‘after the cause of action
accrued[.]’” Id. (quoting Tenn. Code Ann. § 28-3-104(a)(1)).
In this case, plaintiffs allege that defendants’ publication of their image and likeness
constitutes defamation because the publication falsely accuses plaintiffs of working for or
endorsing MTM [Doc. 1 ¶ 193]. The challenged images at issue were posted on social
media between August 12, 2014, and August 25, 2023 [See Doc. 1-2]. Plaintiffs initiated
this lawsuit on April 29, 2025 [Doc. 1]. Therefore, the statute of limitations expired, at the
latest, on August 25, 2024. See Tenn. Code Ann. § 28-3-104(a)(1).
Moreover, the Court does not find that this case is among “that limited class of libel
cases which, because of the secretive or inherently undiscoverable nature of the
publication, the plaintiff did not know, or with reasonable diligence could not have

2
Pitner states that one image of Pepaj was allegedly published on March 17, 2025 [Doc.
18, p. 16]. Upon a review of the record, it is unclear when the image was published [See Doc. 1;
Doc. 1-2, pp. 11–16]. Therefore, the Court will limit its analysis to plaintiffs’ remaining
defamation claims.

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discovered, that he had been defamed.” Kinser v. Bechtel Power Corp., 868 F. Supp. 2d
702, 709 (E.D. Tenn. 2012) (citation omitted). Here, the alleged misappropriated images
were posted to public social media accounts that could have been discovered by plaintiffs
with reasonable diligence [See Doc. 1-2]. Thus, the Court finds that more than one year
before filing this case plaintiffs knew or with reasonable diligence could have discovered
that they had been defamed. See Kinser, 868 F. Supp. 2d at 709 (“This is therefore not one
of the exceptionally rare libel cases where Tennessee’s discovery rule operates to toll the
statute of limitations.”). Accordingly, plaintiffs’ defamation claims based on images
published on or before August 25, 2023, are time-barred, and they will be DISMISSED.
F. Negligence Claims

Lastly, Pitner argues that plaintiffs’ negligence claims should be dismissed because
the “substantial point” of the complaint is defamation, and the one-year statute of
limitations has run [Doc. 18, p. 16]. Specifically, Pitner contends that plaintiffs’ negligence
claims are based on the intentional publication of certain images, and plaintiffs have not
alleged that Pitner negligently published any images of them [Id. at 17]. Thus, the Court
must determine whether plaintiffs’ negligence claims sound in defamation, which has a
one-year statute of limitations. See Tenn. Code Ann. § 28-3-104(a)(1).
In Tennessee, “[t]he choice of the correct statute of limitations is made by
considering the ‘gravamen of the complaint.’” Redwing v. Catholic Bishop of Diocese of
Memphis, 363 S.W.3d 436, 457 (Tenn. 2012) (quoting Whaley v. Perkins, 197 S.W.3d 665,
670 (Tenn. 2006)). This phrase “refers to the ‘substantial point,’ the ‘real purpose,’ or the
‘object’ of the complaint.” Id. (quoting Est. of French v. Stratford House, 333 S.W.3d 546,
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557 (Tenn. 2011)). “Determining the ‘gravamen of the complaint’ is a question of law.”
Id. (quoting Gunter v. Lab. Corp. of Am., 121 S.W.3d 636, 638 (Tenn. 2003)). “Where a
plaintiff asserts multiple claims, ‘courts must ascertain the gravamen of each claim, not the
gravamen of the complaint in its entirety’.” Alsbrook v. Concorde Career Colls., Inc., 469
F. Supp. 3d 805, 824 (W.D. Tenn. June 25, 2020) (quoting Benz-Elliot v. Barrett Enters.,
LP, 456 S.W.3d 140, 149 (Tenn. 2015)). In doing so, courts consider “the basis of the
claim and the type of injuries for which damages are sought.” Benz-Elliot, 456 S.W.3d at
149 (emphasis in original).
Upon review of the complaint, it appears that the object of the plaintiffs’ negligence
claims is the intentional tort of defamation. First, plaintiffs’ negligence and defamation
claims seek damages for the same injury, namely, defendants’ alleged publication of
plaintiffs’ images without their consent [Compare Doc. 1 ¶¶ 185–97 with id. ¶¶ 198–206].
Second, the basis for plaintiffs’ negligence and defamation claims is the same.
Specifically, plaintiffs allege that defendants owed them a duty to ensure that their
advertising and/or promotions materials did not infringe on plaintiffs’ property and
publicity rights and did not falsely portray a connection between plaintiffs and defendants
[Doc. 1 ¶¶ 201–02]. Plaintiffs allege that defendants breached their duty of care by “failing
to either adhere to or implement policies and procedures to ensure that the use of
intellectual property, publicity rights, and/or the image and likeness of individuals for
promotional and advertising purposes were not unauthorized, non-consensual, or false and
deceptive” [Id. ¶¶ 203–04]. They also assert the defendants breached their duty of care by
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negligently hiring, screening, retaining, supervising, and/or training” employees and agents
[Id. ¶ 205].
Although plaintiffs label their claims as ones for negligent hiring, supervision, and
retention, the claims are rooted in defendants’ intentional publication of their images
without consent or authorization. See Lattibeaudiere v. AMR Servs. Corp., No. 95-CV-
5269, 1996 WL 518076, at *5 (E.D.N.Y. 1996) (“Here, the gravamen of plaintiff’s
complaint is intentional conduct by defendants, and his negligent hiring and retention
claims are merely asserted in an effort to avoid the one-year statute of limitations for
intentional torts.”); see also Torres v CBS News, 879 F. Supp. 309, 316 (S.D.N.Y. 1995)
(treating the plaintiff’s negligence claim as a defamation claim and applying the one-year
statute of limitations). Moreover, plaintiffs do not allege that Pitner negligently published
any images of plaintiffs [See Doc. 1]. Since plaintiffs’ negligence claims sound in
defamation, they are time-barred under the one-year statute of limitations governing libel
claims as discussed above. See supra III.E. Therefore, the Court plaintiffs’ negligence
claims will be DISMISSED.
IV. Conclusion

For the reasons above, Pitner’s Motion for Partial Dismissal [Doc. 18] is
GRANTED.
IT IS SO ORDERED.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE

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