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The model has a solid independent claim under a theory of right to publicity...
And you might have a winner as well but...
You have a copyright claim but without the registration you cannot even sue at this point. You will need to file for the copyright and then file. Since you did not copyright the image prior to infringement you can only to go after actual damages, which means you will need an expert to review the data and testify.
We just hired a copyright expert in a case - retainer was $15,000.00. His total expense will be about $25,000.00. By the way, the $15,000 in non-refundable.
Your damages will be based upon an "unjust rewards" theory. Which means you will be entitled to the gross earnings made from that ad. Here's the problem, they get to reduce gross to net and are allowed to introduce testimony and evidence to that effect. A jury doesnt have to buy it though.
I need more information about the infringement but I know the DMCA cannot be used as an affirmative defense against the models claims and I dont see how they could use it against you either.
Good-luck and now go make some lawyer rich....
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