The personas of comedians, movie stars, football players and non-celebrities made appearances in publicity lawsuits this year. Noteworthy among many of the cases is the use by plaintiffs of publicity laws where principles of right of privacy and publicity clearly have no place. But part of the historical development of right of privacy, and in particular publicity law, include plaintiffs attempts to test the scope of existing legal boundaries with non-traditional facts and circumstances. Recent cases are no different. Most courts seem unwilling to deviate too far from precedent, however, relying on established law and the four corners of the Restatement (Second) of Facts or, more likely, simply dismissing plaintiff's allegations as improperly plead. Here are what courts across the country have said about state publicity statutes and common law right of privacy asserted by plaintiffs in recent law suits.
Bullard v. Media Play, Inc., No. S12-Q-2087 (Georgia 2013)
In this case involving the use by Defendant of plaintiff's partially-nude image captured in Florida and distributed in video and print media across the country, including in plaintiff's home state of Georgia, the Georgia Supreme Court considered several issues related to Georgia's right of privacy (publicity) law. First, applying the doctrine of lex loci delicti, the court concluded that the substantive law of Georgia governs defendant's liability because the injury suffered by plaintiff occurred in Georgia even though the initial video capturing her image was shot in Florida. Second, the court concluded that plaintiff's pleading adequately stated a claim for misappropriation under Georgia law. In particular, the court concluded that there was no requirement under Georgia law that the plaintiff have any inherent or preexisting commercial value in her name before a wrongful appropriation takes place in order to maintain a viable claim for appropriation. Third, the court concluded that damages in an appropriation of likeness claim do not include general damages; rather damages are to be measured by “the value of the use of the appropriated publicity.” Fourth, the court concluded that granting initial consent to use of one's image or likeness does not extend to subsequent uses; here, plaintiff's consent did not extend to incorporating the video clip of plaintiff into a video tape that was commercially distributed and placing a photo of plaintiff on the cover of the video packaging.
Trannel v. Prairie Ridge Media, Inc., No. 2-12-0725 (Ill. Appellate Ct 2013).
Illinois codified its common law right of privacy (publicity) in 1999 with the enactment of the Right of Publicity Act, 765 ILCS 1075/1 et seq. Section 30(a) of the Act provides that a person may not use an individual's identity for commercial purposes during the individual's lifetime without having obtained previous written consent. In affirming-in-part the lower court's grant of summary judgment in favor or defendant publisher, the Illinois Appellate Court focused on the "commercial purpose" aspect of the Act, and its non-commercial "newsworthiness" exemption. At issue was a photograph of Plaintiff and her daughter that appeared in an issue of defendant's magazine in connection with the announcement of their winning a backyard garden contest. Such a use, the court said, was simply reporting of a recent news event, i.e., who won the contest, and thus was exempted from the Act. In contrast, the subsequent use of the subject photograph on the cover of a media kit was for commercial purposes, and thus violated Section 30(a). The court awarded statutory damages ($1,000) because Plaintiff failed to proffer evidence linking actual profits of defendant with the use of the photograph.
Olson v. LaBrie, No. A12-1388 (unpublished) (Minn Ct. Appeals, 2013).
The Minnesota Court of Appeal affirmed a district court's dismissal of plaintiff's allegation of appropriation of name and/or likeness claim for failure to state a claim upon which relief can be granted, finding that "nothing in appellant's complaint indicates that respondent was conferred a benefit, either commercially or otherwise, by [posting childhood images of appellant on a social-media website without appellant's consent]." The appeals court cited Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 233 (Minn. 1998) (quoting Restatement (Second) of Torts § 652C (1977)). Minnesota recognizes the common law right of privacy, including the appropriation of one's name and/or likeness.
Jalin Realty Capital Advisors, LLC v. A Better Wireless, NISP, LLC, No. 11-CV-165 (D. Minn. 2013)
In this case involving defendant's creation of a website using plaintiff's initials (JRCA.com) in order to publicly criticize plaintiff, the District Court dismissed plaintiff's common law right of privacy (publicity) claim, finding that no Minnesota court had previously allowed a commercial entity, as opposed to a human being, to bring an appropriation claim under the state's common law, and allowing plaintiff to do so under the present set of facts "would make Minnesota a major outlier." The court also recognized that plaintiff had pled trademark infringement and defamation claims, and stated that it is not clear that allowing an appropriation claim would serve any purpose that is not already served by those other causes of action.
Hart v. Electronic Arts, Inc., No. 11-CV-3750 (3d Cir. 2013)
In this publicity case arising under New Jersey's right of privacy common law (based on the Restatement (Second) of Torts), Appellant Ryan Hart, a former stand-out quarterback for Rutgers University, sued EA for using his likeness (an avatar that resembled him) and biographical information (his physical statistics, and personal information) in its NCAA Football series of videogames. The District Court granted summary judgment in favor of EA on the ground that its use of Hart's likeness was protected by the First Amendment. The Third Circuit reversed, and in a detailed analysis of the tension between the First Amendment and the right of publicity, a case of first impression for New Jersey, the Third Circuit concluded that, notwithstanding that video games are protected expressive speech under the First Amendment, EA appropriated Hart's persona. In reaching that conclusion, the Third Circuit considered three First Amendment balancing tests adopted by other courts: (1) the commercial-interest-based Predominant Use Test, (2) the trademark-based Rogers Test, and (3) the copyright-based Transformative Use Test. Finding that the Rogers and Transformative Use tests are the most "well-established," the Third Circuit adopted the Transformative Use Test as being the most appropriate balancing test to be applied in New Jersey. Under that test, the digital Ryan Hart, the court wrote, "does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game. This is not transformative; the various digitized sights and sounds in the video game do not alter or transform the Appellant's identity in a significant way." The court dismissed EA's assertion that its game was transformative because it allowed users to modify the Hart avatar's physical appearance and biographical information. Content creators cannot escape appropriation liability for a work that uses a celebrity's unaltered identity in one section, the court wrote, merely because it also a includes a "fanciful creation" of the celebrity, or a mechanism for a user to create a fanciful creation, in another section of the work.
Cardona v. Community Access, Inc., No. 11-CV-4129 (EDNY Jan.25, 2013)
The Eastern District of New York declined to extend New York's tort of invasion of privacy statute (Civil Rights Law §§ 50 and 51) to facts alleging defendant forced persons (including plaintiff) to sign a log book to enter a private residence, assault, and other claims. None of plaintiff's alleged facts, the court said, related to the appropriation of a plaintiff's name or likeness for a defendant's benefit, and no facts raised by plaintiff suggested plaintiff's name, portrait, or picture was improperly used for advertising purposes or for trade without the plaintiff's consent.
Lohan v. Perez et al. No. 11-CV-5413 (EDNY Feb. 21, 2013)
The Eastern District of New York dismissed Lindsay Lohan's publicity suit against Pitbull, Ne-Yo, Afrojack, several John and Jane Does, and several recording and music distribution companies, for failing to state a claim under New York's Civil Rights Law §§ 50 and 51, which Lohan said defendants violated by using her "name, characterization, and personality for advertising purposes, and for purposes of trade and commercial benefits" without her consent. Specifically, Lohan took issue with the performance of "Song," which appeared on Pitbull's "Planet Pit" album (released in 2011), during which the lyrics ""So, I'm tiptoein', to keep flowin'/ I got it locked up like Lindsay Lohan" are heard. Plaintiff alleges that she did not consent to or authorize the use of her name in the Song, and that the "appearance of [her] name and characterization" in the Song "causes [her] to be associated and identified in connection with defendants." She further alleged that defendants used her name in the Song "for advertising purposes, and for purposes of trade and commercial benefits." In dismissing the complaint, the court first noted that §§ 50 and 51 are strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person, and prohibit the use of pictures, names or portraits for advertising purposes or for the purposes of trade only, and nothing more. The court also explained that use of an individual's name, even without his consent, is not prohibited if that use is part of pure First Amendment free speech in the form of a work of art, and that music as a form of expression and communication is protected under the First Amendment. The court also found that use of Lohan's name in the Song was not used for "advertising" or "purposes of trade", despite the fact that the Song was presumably created and distributed for the purpose of making a profit. The court also found the use of Lohan's name to be an isolated event, and therefore an incidental use, which New York courts have relied on to exempt others from liability under Sections 50 and 51. On those facts, the court found that Lohan's complaint failed to state a claim, and dismissed the publicity claim.
Stayart v. Google, No. 11-CV-3012 (7th Cir. 2013)
The Seventh Circuit declined to extend Wisconsin's right of privacy statute (Wis. Stat. § 995.50) and common law right of privacy to Google's Internet search results listings containing plaintiff's name, even where such listings generated financial revenue through online trade and advertising for Google. Plaintiff's pleading, the court found, failed to show a substantial connection between Google's use of her name and its efforts to generate advertising revenues, triggering the incidental-use exception to Wisconsin's misappropriation laws.
Habush v. Cannon, No. 11-AP-1769 (Court of Appeals Wis. 2013)
The Wisconsin Court of Appeal declined to extend Wisconsin's privacy statute, § 995.50(2)(b), to defendant law firm's bidding on competitor law firm's name and "use" of the same as a keyword search term under Google's Adwords program. Defendant purchased plaintiff's law firm masthead names as a Google Adword to ensure higher placement on Google search results. In construing the scope of the term "use" (i.e., "use...of the name, portrait or picture of any living person"), the court found that "use" should be construed broadly, and cover "non-visible" uses, such as use in Google Adwords. Moreover, the court found that locating an advertisement or business near an established competitor to take advantage of the flow of potential customers or clients to the established business is not a practice the legislature intended to prohibit by adopting § 995.50(2)(b). This strategy, the court said, takes advantage of the name of the established business (plaintiff Harbush & Rottier) and its ability to draw potential customers, but the strategy does not "use" the name of the business in the same way as putting the name or image of the business in an advertisement or on a product.
Bogie v. Rosenberg, No. 12-CV-1923 (7th Cir. 2013)
In this case involving plaintiff's appearance in a documentary-style film speaking backstage with comedian Joan Rivers (defendant Rosenberg), the Seventh Circuit declined to extend Wisconsin's right of privacy statute, § 995.50(2)(b) to the use of plaintiff's image in the film because such use fell within the newsworthiness exception of Wisconsin's law, and the brief 16-second appearance of Bogie in the film (amounting to 0.3 percent) was merely incidental to the film. The court relied on a third-party review of the film that explained that it "offers a rare glimpse of the comedic process and the crazy mixture of self-doubt and anger that often fuels it. A unique look inside America's obsession with fame and celebrity." The court also noted similar "newsworthy" cases, including two New York cases (Wisconsin's publicity law is modeled after New York's). In the first, a plaintiff appeared in the film Borat without consent, but the New York court found the use of plaintiff's image fell within the newsworthy exception of New York's law. In the second, a plaintiff appeared in the "headlines" segment of the Tonight Show with Jay Leno, during which Jay Leno highlights pieces from the news that are humorous by virtue of their mistakes or embarrassing errors. In that case, the New York Court of Appeal held such use newsworthy under New York's publicity law. On those facts, Bogie's claim of appropriation of her likeness was dismissed.