Invasion of Privacy Lindsay Bullard exposed her breasts. She was only fourteen. It happened in the parking lot in Panama City. Two unknown men approached her and asked her to do it. She obliged. She knew they were videotaping her. They did not tell and she did not ask them what they were going to do with a video of parts of her anatomy, but they used the video in a series of College Girls Gone Wild. They also used a still photo of Lindsay on the cover of the video box. Her breasts were blocked out and superimposed was the inscription, “Get Educated!” [In this rather intriguing story, a third party obtained the video from the two men. This becomes important below.] Lindsay claimed she suffered humiliation and injury to her feelings and reputation. [Although of tender years and arguably immature, she could have and should have figured that her body parts might end up on public display and for profit.] She sued. Among her claims was appropriation of her likeness. This claim is “but one of several different torts relating to the invasion of one’s privacy.” Under the banner of invasion of privacy, there are “four disparate torts.” They are: [1] intrusion upon the plaintiff’s seclusion or solitude or into his or her private affairs; [2] public disclosure of embarrassing private facts about the plaintiff; [3] publicity which places the plaintiff in a false light in the public eye; and [4] appropriateness, for the defendant’s advantage, of the plaintiff’s name or likeness. What about the issue of consent? Lindsay was not an unwilling participant in this twin peak event. The Court noted that any “consent” she may have given “does not amount to consent for those individuals or an unidentified third party [see above] to use her image to endorse a product for their own commercial gain.” We find this problematic. When she allowed them to photo and video her breasts, it was pretty much open season for the use that was going to be made of the photo and video. At best, she should have asked—even at fourteen. Don’t you think? Or did it really matter? While she won the battle on invasion of privacy, the damage part of her case may be the bigger hill. Since the Court noted that she is pursuing an appropriation of likeness claim, her “measure of damages would not include general damages.” Her “damages would be measured by ‘the value of the use of the appropriate publicity.’ In other words, any recovery would be limited to the actual damages she incurred from the third party’s appropriation of her image.” She “must nevertheless show that the use of her image actually added value to the third party’s advertising efforts that otherwise would not have existed without the use of her image. While it may be difficult for her to prove how much the use of her specific image versus other images on the cover of the video added value to the third party’s advertising efforts, assuming that she could show such added value from the use of her image she would be entitled to recover damages.” Is she now in the comparing breasts test? Or showing that the video would not have sold or sold fewer copies without her breasts displayed on the cover? Just how do you do that? Do you have to hire experts and have men pick and chose? Did Lindsay win the battle but lose the war? Did Lindsay’s lawyer or lawyers think this one through or anticipate this? Or did we miss something? Bullard v. MRA Holding LLC (2013)
Posted on: Mon, 14 Oct 2013 20:08:54 +0000
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