On March 29, 2012, actress Alicyn Packard filed a lawsuit in Los Angeles Superior Court against Moet Hennessy USA over a controversial advertisement for Belvedere Vodka used earlier last month on Belvedere’s Facebook and Twitter pages.

The ad in the middle of all this controversy is one where a man is smiling and holding a woman who looks upset with the following words depicted in the ad “Unlike some people, Belvedere always goes down smoothly.” The premise of the ad of course being the woman refusing to “go down smoothly” and consent to whatever it is the male in the ad has in mind – not exactly a subtle ad.

In either event, Ms. Packard is now coming forward to say that she is the woman in the ad and she did not consent to Belvedere Vodka’s use of her photo. Ms. Packard’s complaint lists causes of action for (1) Violation of California Civil Code Sec. 3344 (Unauthorized Use of Another’s Photograph and Likeness for Advertising); (2) Common Law Misappropriation of Likeness; and (3) Negligent Infliction of Emotional Distress.

California Civil Code Section 3344 prohibits the intentional use of another’s “name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent.” The common law misappropriation of likeness is broader than the California statute and basically prohibits use of the plaintiff’s identity (not just name, voice, signature, photograph, or likeness), does not require proof that the use was “knowing,” and does not have to be directly connected with advertising or sales.

In her lawsuit, Ms. Packard makes clear that Belvedere Vodka has “yet to apologize to [Ms. Packard] , whose image she says was used without permission to sell vodka, and who has now been unwillingly made the face of the Belvedere advertising campaign that jokes about rape, and has been put front and center in the worldwide controversy.”

Ms. Packard claims that she has “suffered injuries to her reputation and her ability to market herself in the entertainment industry, and suffered tremendous anxiety and distress, fearing the effect of this unauthorized marketing and subsequent media firestorm on both her professional and personal lives.”