Liability Insurance
Modeling Personal and Advertising Injury Coverage
Craig Stanovich | March 6, 2026
Footnotes
1 Randy Maniloff, Margo Meta, and Jeffrey Stempel, General Liability Insurance Coverage—Key Issues in Every State, Sixth Edition, Matthew Bender & Company, Inc., Vol. 1, p. 15.
2 "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. CG 00 01 04 13 © Insurance Services Offices, Inc., 2012.
3 The plaintiffs also argued that Blackboard did not provide the written notice required of an insurer under Massachusetts Statute MGL Ch. 175, §111A, when changing, reducing, or eliminating coverage. The court found that the changes to the intellectual property exclusion in 2017 did not eliminate coverage.
Three Massachusetts-based strip clubs ("the clubs") decided to post to their social media and web pages images of 20 "well-known and in some cases world renown professional models." For example, one person whose image was posted was Tara Leigh Patrick aka Carmen Electra. Not only is she a well-known model, she is also a singer and actress. Ms. Patrick has appeared in the television show Baywatch, among other productions. The problem was not only that the clubs failed to obtain her consent (or the consent of the 19 other plaintiffs) for the use of her images—the social media post suggested that she actually worked at the club or, at the very least, endorsed the club. Of course, none of that was true.
The 20 plaintiffs, all whose images were used, sued the clubs, alleging a broad array of claims including false association, false advertisements, violation of the right of privacy, right of publicity, unfair trade practices, defamation, conversion, unjust enrichment, etc.
The plaintiffs and the clubs eventually entered into a settlement agreement: The clubs consented to a judgment of $1,895,000 in favor of the plaintiffs to be divided among them. As the clubs' commercial general liability (CGL) insurer had denied any coverage, including defense, the clubs assigned their rights under the CGL policy to the plaintiffs.
Exercising those rights, the plaintiffs filed suit against the CGL insurer Blackboard Specialty Insurance Company in Patrick v. Blackboard Specialty Ins. Co., Civil Action No. 23-cv-10274-ADB, 2026 U.S. Dist. LEXIS 27130 (D. Mass. Feb. 10, 2026). The plaintiffs asserted breach of contract and sought declaratory judgment and damages, including compensation and the cost of defense. Blackboard moved for summary judgment, asserting that there was no coverage for either defense or the payment of damages.
Even a cursory review of the allegations strongly suggests that at least some allegations fall squarely within the definition of "personal and advertising injury." For example, violating a person's right of privacy is explicitly listed as personal and advertising injury, as is libel and slander, for which defamation is typically the result.
Personal and Advertising Injury Coverage
It may be worth a brief look at the personal and advertising injury coverage that is included in the Insurance Services Office, Inc. (ISO), Commercial General Liability Coverage Form (CG 00 01 04 13). Most claims to which a CGL policy responds involve bodily injury—someone has suffered physical harm—or property damage—tangible property that has been physically injured (or the tangible property has not been physically injured but for which there is loss of use).
But the CGL policy does include an insuring agreement, labeled as Coverage B, that promises to pay damages because of "personal and advertising injury"—a specifically defined term that lists certain covered offenses. Coverage B also promises to defend a suit seeking damages for personal and advertising injury. The Coverage B insuring agreement limits coverage to apply only if the offense was committed during the policy period.
As a general matter, personal and advertising injury coverage is intended to be limited; for coverage to apply, the injury must arise out of the enumerated offenses. Personal and advertising injury is more akin to a named peril property policy: The insured's usual responsibility to demonstrate coverage is made more difficult because courts often apply a strict reading of the offenses. 1 Further, the personal and advertising injury offenses are usually classified as intentional torts—the insured actions were likely intended. Unlike bodily injury or property damage under Coverage A, under the Coverage B insuring agreement, the injury does not have to result from an "occurrence." 2
Of course, several exclusions apply, including exclusions intended to remove coverage for intentional harm, such as exclusions that eliminate coverage for knowingly violating the rights of another or publishing information with knowledge of its falsity. Also excluded is coverage for a publication that is first made prior to the policy period.
The Court's Coverage Analysis
Two Policies
Blackboard issued two CGL policies: one policy that was effective from February 21, 2016, to February 21, 2017, and a second policy that was effective from February 21, 2017, to February 21, 2018. While the court does not explicitly state this, it appears to concede that at least some of the plaintiffs' allegations fell within the policy definition of personal and advertising injury. Instead of focusing on whether the offenses were within the definition, the court instead focused on whether the offenses took place during the policy period or whether exclusions to Coverage B applied.
Only One Offense Committed During the 2016–2017 Policy Period
As an initial matter, because only one image could be shown by the plaintiffs to have been posted during the 2016–2017 policy period, the court concluded that any other images were not possibly covered by this policy. While the date of posting of some images was not during this policy period, other images were undated, and thus, the plaintiffs could not demonstrate that such offenses—the postings—occurred during the policy period.
The court also noted that, if the undated images were posted prior to the policy period, exclusion c., "Material Published Prior to the Policy Period," might then apply and eliminate coverage. Either way, the plaintiffs could not establish that the undated posts were covered. Because there was no possibility of coverage, Blackboard had no duty to defend or pay damages for images other than the one image posted during the 2016–2017 policy period.
As respects the duty to defend, the court did observe that, even though some of the plaintiffs' offenses did not occur during the policy period, "the fact that other Plaintiffs claims did allegedly occur within coverage period would create a duty for Blackboard to defend the Patrick action in its entirety, if such a duty existed under the Policies." In other words, the court was referring to the idea that if a duty to defend were established, that defense must be of the entire complaint, even if some of the allegations were not possibly covered by the policy.
This is sometimes referred to as "in for one, in for all." If the entire suit must be defended, what usually follows is a fight over whether the insurer has a right to be reimbursed for the cost of defending allegations never potentially covered. For more about this issue, see "Pay Me Back! Reimbursement of Defense Costs in the CGL."
The Image Posted During the 2016–2017 Policy Period
Addressing the one image posted during the policy period, the court found that coverage was excluded because of the "intellectual property exclusion" in the CGL policy. This exclusion cited for the 2016–2017 policy is a standard exclusion—exclusion f. to Coverage B, titled "Infringement of Copyright, Patent, Trademark or Trade Secret"—which eliminates coverage not only for those specified forms of intellectual property, but also for "other intellectual property rights." However, there is an important exception, and part of that exception states that the exclusion does not include "the use of another's advertising idea in your 'advertisement.'"
Not an Advertising Idea—Coverage Denied
The plaintiffs argued that the exception applied—that the posting of a model's image was the use of another's advertising idea. While the court agreed that the concept of an advertising idea was broad, it was not all-encompassing. Reviewing Massachusetts case law as well as case law from other jurisdictions, the court used as an example a distinctively designed teapot, noting that the distinctive features of the teapot did not transform the teapot into an advertising "idea."
The court ruled that images alone did not amount to a use of another's advertising, further noting that the plaintiffs' complaint did not suggest that the images were ideas for soliciting business or ideas about advertising. Accordingly, there was no duty to defend or pay damages because the plaintiffs' allegations did not allege an injury arising out of advertising ideas.
The Images Posted During the 2017–2018 Policy Period
The Blackboard policy for the 2017–2018 policy period included different wording. The definition of personal and advertising injury expressly added as an offense coverage for the publications of "another's images, photographs, likenesses or personal attributes."
Amended Intellectual Property Exclusion
Curiously, Blackboard also changed exclusion f., the intellectual property exclusion wording, 3 to exclude coverage for "the actual alleged use of another's images, photographs, likenesses or personal attributes whether altered or unaltered." The changed exclusion f. still eliminated coverage for "other intellectual property rights" but removed the advertising ideas exception entirely.
Unsurprisingly, the court found the amended intellectual property exclusion applied, and there was no coverage for defense or to pay damages.
"Intellectual Property Exclusion" Heading
Among other things, the plaintiffs argued that the heading (title) of the amended intellectual property exclusion should be read so that the exclusion applied only to the listed offenses: copyright, patent, trademark, or trade secret and nothing more. The court found that the heading did not change the unambiguous wording of the intellectual property exclusion and declined to "read the heading as a limitation on that plain language or to find the provision ambiguous," quoting Couch on Insurance as well as case law from other jurisdictions. For example, in a federal case in Virginia, Reserve Bank v. Progressive Cas. Ins. Co., 503 F. Supp. 2d 789, 794 (E.D. Va. 2007), the court found "an ambiguity does not arise because an exclusion has an imperfectly descriptive heading."
2023 Arizona Ruling
Most of the same plaintiffs had sought coverage from another CGL insurer, Watford Specialty Insurance Company, in federal court in Arizona a few years prior. (See Ratchford v. Watford Specialty Ins. Co., 659 F. Supp. 3d 1032 (D. Ariz. 2023).) The federal judge in that case noted that "the parties do not dispute that these claims represent 'personal and advertising injury' as defined in the policies" and that the dispute was about two exclusions. The Watford CGL policy was identical to the Blackboard CGL policy.
In Ratchford, the arguments made by the plaintiffs against Watford were virtually the same as those made in the litigation with Blackboard. The analysis of the Arizona court found that the intellectual property exclusion, despite the heading, was clear and unambiguous and was persuasive to the Massachusetts court (including the fact that the Ninth Circuit dismissed an appeal in 2024 of that decision).
Illusory Coverage
The plaintiffs also argued that the personal and advertising injury coverage was illusory. Why would the insurer add coverage for the use of another's image but then exclude coverage for what it just added—use of another's image? As odd as this may be, according to the court, it does not amount to providing illusory coverage because there is some coverage provided for personal and advertising injury.
Quoting from Massachusetts Supreme Judicial Court case law, the court noted that "coverage is not illusory, however, if the policy still provides coverage for some acts." The Arizona court came to the same conclusion on the same wording—the exclusion does not completely remove coverage and, therefore, is not illusory.
Libel and Slander
The plaintiffs also argued that coverage applied because the policy included coverage for libel and slander and would, thus, not be subject to the intellectual property exclusion. But as the amended complaint was based on the images alone, and not the words, the court ruled against coverage. Noting the wide scope of the "arising out of" preamble used in both the 2016 and 2017 intellectual property exclusions, the court found coverage did not apply. Any harm suffered from words was connected with (arising out of) the clubs' use of the images. Therefore, the use of the images was excluded in both policies via the intellectual property exclusion.
Conclusion
The "other intellectual property" wording in exclusion f. as applied to personal and advertising injury is significant—particularly when considering the breadth of the exclusion in light of the "arising out of" preamble—excluding that which originates from, growing out of, flowing from, incident to, or having connection to other intellectual property rights.
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