A federal judge in Boston handed Blackboard Specialty Insurance Company a complete summary judgment victory earlier this month in a coverage dispute arising from one of the more unusual claim scenarios in recent Massachusetts insurance litigation: Twenty professional models seeking to collect under a commercial general liability policy they never held, for injuries caused by businesses they never knew.
The February 10th decision in Patrick v. Blackboard Specialty Insurance Company by U.S. District Judge Allison D. Burroughs delivers straightforward conclusions about the reach of intellectual property exclusions in CGL policies. The Court’s analysis turns on how two differently worded exclusions operated against the same underlying facts and states which coverage arguments courts will and will not credit.
Models Seek Coverage for $1,895,000 Consent Judgment for Misuse of Their Images
Between 2016 and 2018, three Greater Boston strip clubs, The Squire, Ten’s Show Club, and the Golden Banana, posted images of twenty well-known professional models on their social media accounts. The clubs had not paid for the images and had posted the images without the models’ consent. In 2019, the models sued the clubs in federal court, asserting claims ranging from Lanham Act violations and right-of-publicity claims to defamation and conversion.
The clubs carried commercial general liability insurance through Blackboard. When notified of the suit, Blackboard denied coverage in 2020 and again in 2022 after receiving an amended complaint. The parties ultimately resolved the underlying lawsuit through a settlement under which the clubs consented to a judgment of $1,895,000 in the models’ favor—divided among the twenty individual plaintiffs—and assigned their insurance rights to the plaintiff models. That assignment transferred whatever coverage claims existed under the Blackboard policies to the models themselves, who then brought a separate coverage action seeking to establish both a duty to defend and a duty to indemnify under those policies.
Two Policies, Two Exclusions
Blackboard’s two consecutive policy periods, from February 21, 2016, to February 21, 2017, and from February 21, 2017, to February 21, 2018, both contained “personal and advertising injury” coverage under Coverage B, but their intellectual property exclusions differed in ways that proved significant.
The 2016-17 Policy excluded coverage for:
“Personal and advertising injury arising out of the infringement of copyright, patent, trademark, trade secret, or other intellectual property rights.”
Critically, that exclusion contained a carve-back: it did not apply to “infringement, in your advertisement, of copyright, trade dress or slogan,” and separately preserved coverage for “the use of another’s advertising idea in your advertisement.”
The 2017-18 Policy contained an expanded exclusion with two express subsections. Subsection (1) tracked the prior policy’s language on IP infringement. Subsection (2) added an entirely new ground for exclusion:
“Personal and advertising injury arising out of the actual or alleged use of another’s images, photographs, likenesses or personal attributes whether altered or unaltered.”
No carve-back for advertising ideas appeared anywhere in the 2017-18 policy exclusion.
The Coverage Period Problem Eliminates Most Plaintiffs
Before reaching the exclusion analysis, the Court addressed a threshold issue that eliminated most of the twenty plaintiffs from consideration entirely. To trigger any coverage obligation, the underlying advertisements had to have been posted during one of the two policy periods. The Court found that only five images appeared to have been posted on specific dates within the coverage windows: Davalos (October 28, 2016), Klaren (October 25, 2017), Ratchford (October 27, 2017), Hepner (January 6, 2018), and, more conditionally, Milani (October 23, 2017).
For eleven plaintiffs, the record established that no images were posted during either policy period. For five others—Acosta, Geiger, Gray, Pepaj, and Pinder—the underlying complaint alleged no specific posting dates at all. The Court applied the settled Massachusetts duty-to-defend doctrine: a complaint must show at least a possibility that a claim falls within the coverage period, and undated allegations of image use do not satisfy that standard. The Court dismissed those claims without analyzing the exclusion’s applicability.
The 2016-17 Exclusion: Advertising Idea Arguments Fall Short
Only Davalos’s claim fell within the 2016-17 policy period. The parties agreed her claims fell within Coverage B’s insuring agreement. The dispute centered on whether the “advertising idea” carve-back saved her from the exclusion.
Under Massachusetts law, as articulated by the Supreme Judicial Court in Holyoke Mutual Insurance Co. v. Vibram USA, an advertising idea “focuses on how the public’s attention is being drawn to a business or product”—something distinct from the product or service itself. A nonadvertising idea that is subsequently repurposed for advertising does not become an advertising idea in the relevant sense.
The models argued that the clubs had misappropriated their advertising ideas because the underlying images came from the models’ own social media pages, which they use professionally to market themselves. Judge Burroughs was unpersuaded. The amended complaint in the underlying lawsuit made only a vague reference to “certain cases” involving the misappropriation of advertising ideas, without any specific allegation that the Davalos image originated as an advertising concept. Even applying the generous standard governing the duty to defend, the complaint failed to allege an injury arising from the misappropriation of an advertising idea. The exclusion applied, and both defense and indemnification obligations fell away.
The 2017-18 Exclusion: Plain Language Controls
For claims falling within the 2017-18 policy period—primarily those of Klaren, Ratchford, Hepner, and conditionally Milani—the analysis was, if anything, more straightforward.
The models advanced three principal arguments against the 2017-18 exclusion.
- First, they argued that the exclusion’s heading—“Infringement Of Copyright, Patent, Trademark Or Trade Secret”—limited the exclusion to traditional IP claims, meaning subsection (2) ’s broad language about images and likenesses should be read only in that context.
- Second, they argued that Blackboard failed to comply with Massachusetts General Laws chapter 175, section 111A, which requires insurers to provide notice when reducing coverage from a prior policy period, and that the 2017-18 exclusion was therefore void.
- Third, they argued the exclusion was so broad as to render Coverage B illusory.
The Court rejected all three.
On the exclusion’s heading argument, Judge Burroughs held that the plain language of subsection (2) is unambiguous—it excludes all personal and advertising injury arising out of the use of another’s images, regardless of the legal theory underlying the claim. Adopting the models’ interpretation would render subsection (1) entirely superfluous, a result Massachusetts courts consistently refuse to reach. The Court also cited a 2023 District of Arizona decision analyzing an identical policy form and reaching the same conclusion.
On the notice argument, the Court found that the models had failed to establish the premise: because their claims were excluded under both policies, Blackboard had not actually reduced coverage when it changed the exclusion language. No violation of section 111A could be established where no coverage existed to eliminate.
On illusory coverage, the Court applied the Massachusetts rule that coverage is not illusory if it “still provides coverage for some acts.” The 2017-18 policy’s exclusion reached images and likenesses but left intact coverage for other types of personal and advertising injuries, Such as libel or slander not involving images. Coverage B remained meaningful; it simply did not reach this particular category of claims.
The Decision’s Takeaways
The Patrick decision illustrates two points.
First, the difference between the 2016-17 and 2017-18 exclusion forms was not academic: the advertising idea carve-back in the older form generated coverage litigation, while the newer form’s direct exclusion of image-based claims foreclosed the argument entirely. Carriers that updated their forms to include express image and likeness exclusions have legal support in at least the Massachusetts federal court for their enforceability.
Second, the duty-to-defend analysis confirms that vague underlying pleadings carry real consequences for policyholders. The models who lost coverage period standing did so not because their claims were legally invalid, but because the underlying complaint failed to plead specific enough facts—dates, in particular—to trigger even the possibility of coverage. In multi-plaintiff litigation arising from recurring conduct, how plaintiffs plead their claims can determine which insurer bears the loss.
