Antitrust Law Daily Wrap Up, ADVERTISING—GaSCt: Video Distributor Could Be Liable for Appropriation of Likeness Under Georgia Law, (Mar 29, 2013)

By William Zale, J.D.

Video distribution company MRA Holding could be liable for appropriation of likeness under Georgia law for commercially distributing a video including a clip of Georgia 14-year-old Lindsay Bullard exposing her breasts for videotaping by unknown men in a Florida parking lot and for placing a photo from the clip on the cover of the video packaging, according to the Supreme Court of Georgia (Bullard v. MRA Holding, LLC, March 28, 2013, Melton, H.). The court answered questions certified by United States District Court for the Northern District of Georgia.

Although the initial video of Bullard was shot in Florida, MRA distributed Bullard’s image throughout the United States, including in Georgia. Bullard lived and attended school in Georgia, where she would have sustained any injury that resulted from the distribution of her image. Because Georgia is the state “where the injury sustained was suffered,” Georgia law controlled, according to the court.

An appropriation of likeness claim in Georgia consists of the following elements: (1) the appropriation of another’s name and likeness, whether such likeness be a photograph or other reproduction of the person’s likeness, (2) without consent, (3) for the financial gain of the appropriator. The court did not find any requirement in Georgia law that the plaintiff must have any inherent or preexisting commercial value in his or her name before a wrongful appropriation takes place in order to maintain a viable claim for appropriation. Courts in Georgia have recognized the rights of private citizens as well as entertainers not to have their names and photographs used for the financial gain of the user without their consent.

Any “consent” that Bullard may have given by exposing herself to the two individuals who videotaped her did not amount to consent for those individuals or an unidentified third party (MRA) to use her image to endorse a product for their own commercial gain, the court said. In this regard, as found by the district court, MRA placed the words “Get Educated!” on the cover of the College Girls Gone Wild video in a manner that made it appear as though Bullard may have been making this statement. This could serve as an “endorsement” of the College Girls Gone Wild video by Bullard without her consent, as the viewer of the video cover is ostensibly being invited to “Get Educated!” about the contents of the video (and Bullard’s exposed breasts) by purchasing the video at Bullard’s request. Bullard stated a claim for MRA’s appropriation of her image without her consent and for its own commercial gain, according to the court.

Because Bullard could be seen as endorsing the College Girls Gone Wild video through the use of her image, the court found no conflict between Bullard’s rights and the freedoms of speech and press. MRA could be subject to liability for its actions, the court determined.

Bullard’s damages would be measured by the value of the use of the appropriated publicity. The fact that MRA chose to use Bullard’s image would suggest that it believed that the image held some value with respect to advancing the company’s goal of selling more College Girls Gone Wild videos, the court observed. Regardless of MRA’s choice to use Bullard’s image, however, in order to collect damages, Bullard must nevertheless show that the use of her image actually added value to MRA’s advertising efforts that otherwise would not have existed without the use of her image, the court said. While it may be difficult for Bullard to prove how much the use of her specific image versus other images on the cover of the video added value to MRA’s advertising efforts, assuming that she could show such added value from the use of her image, she would be entitled to recover damages.

Because, under the facts as presented by the district court, it was not possible for Bullard to have given MRA consent to use her image to endorse the video in which her image appeared, the court said that it did not need to reach the additional question whether Bullard’s consent could have been rendered invalid due to her age.

The case is No. S12Q2087.

Attorneys: Jeffrey S. Banks (Banks & Riedel) for Lindsay Bullard. Joseph Scott Carr (Wargo French LLP) for MRA Holding, LLC.

Companies: MRA Holding, LLC

Cases: Advertising GeorgiaNews