Tennessee Statutory Civil Law

  1. Tennessee Personal Rights Protection Act (“TPRPA”)

    1. Introduction

      Tennessee recognizes a statutory invasion of privacy claim arising from the property right in one’s likeness/image where a person can show a causal connection between the infringement and a direct benefit going to the infringing party. A WMC victim could try to use the TPRPA to prevent someone from using his or her likeness for a commercial purpose without his or her knowledge, permission, or consent.

    2. Text of the Statute(s)

      • Tenn. Code Ann. § 47-25-1105 – Unauthorized use prohibited

        (a) Any person who knowingly uses or infringes upon the use of another individual’s name, photograph, or likeness in any medium, in any manner directed to any person other than such individual, as an item of commerce for purposes of advertising products, merchandise, goods, or services, without such individual’s prior consent, or, in the case of a minor, the prior consent of such minor’s parent or legal guardian, or in the case of a deceased individual, the consent of the executor or administrator, heirs, or devisees of such deceased individual, shall be liable to a civil action.

        (b) In addition to the civil action authorized by this section and the remedies set out in § 47-25-1106, any person who commits unauthorized use as defined in subsection (a) commits a Class A misdemeanor.

        (c) It is no defense to the unauthorized use defined in subsection (a) that the photograph includes more than one (1) individual so identifiable; provided, that the individual or individuals complaining of the use shall be represented as individuals per se rather than solely as members of a definable group represented in the photograph.

        (d) If an unauthorized use as defined in subsection (a) is by means of products, merchandise, goods, or other tangible personal property, all such property, including all instrumentalities used in connection with the unauthorized use by the person violating this section, is declared contraband and subject to seizure by, and forfeiture to, the state in the same manner as is provided by law for the seizure and forfeiture of other contraband items.

    3. Cases

      1. Cordell v. Detective Publ’n, Inc., 307 F. Supp. 1212 (E.D. Tenn. 1968)

        • Procedural Posture: The defendant moved to dismiss for failure to state a claim on which relief can be granted based on its argument that Tennessee has no cause of action for a wrongful invasion of privacy, and that the claim conflicted with the right of publication of matters of public interest and with the freedom of the press.

        • Law: Tenn. Code Ann. § 47-25-1105; invasion of privacy.

        • Facts: The plaintiff brought a claim for invasion of privacy based on the publication of an article in the March 1967 issue of defendant’s magazine, Front Page Detective. The subject of the article was the murder of the plaintiff’s daughter and the events that lead up to the suspected assailants’ capture.

        • Outcome: The court explained that because a cause of action of invasion of privacy was discussed in at least two Tennessee state court cases, it was likely that Tennessee courts “would recognize a cause of action for wrongful invasion of privacy and that the complaint in this case is not subject to dismissal because it is based upon such an alleged cause of action.”1 It then found that the plaintiff’s daughter’s murder was a public and newsworthy event that caused the victim to lose her right to privacy, a loss that extended to her parents as well.2 “[T]he Court is of the opinion that the murder of the plaintiff’s daughter was clearly a matter of public concern and public interest. Accepting as false all those portions of the article asserted by the plaintiff to be false, even when so read, the article does not cast the plaintiff in a false light nor does it reflect upon her in a manner that could be said to be offensive or objectionable to a reasonable person of ordinary sensibilities. The Court is of the opinion that the plaintiff may not recover in an action for invasion of her privacy where that action purports to be based upon a reasonably factual magazine article that only incidentally and briefly refers to the plaintiff in the course of the recounting the story of the murder of the plaintiff’s daughter, a matter of undisputed public interest, where the article is free of material and calculated falsehood and where in its reference to the plaintiff, it could not reasonably be interpreted as being offensive or objectionable to a person of ordinary sensibilities.”3

        • Special Notes: The court noted that the majority of statements in the article about which plaintiff complained related to “alleged statements by her daughter of a new romantic interest in her life,” and statements about furniture and appliances they owned.

      2. Elvis Presley Enter., Inc. v. Elvisly Yours, Inc., 936 F.2d 889 (6th Cir. 1991)

        • Procedural Posture: Defendant appealed from the grant of summary judgment and entry of permanent injunction in favor of plaintiff Elvis Presley Enterprises (“EPE”).

        • Law: Tenn. Code Ann. § 47-25-1105, trademark infringement, unfair competition.

        • Facts: EPE was the assignee of state and federal trademarks, service marks, copyrights, and publicity rights of the Estate of Elvis Presley, variously in the names of Elvis and Elvis Presley, or the likeness of Elvis Presley. EPE licensed the use of its various rights to several different entities. Defendant Shaw sold Elvis Presley memorabilia in England and the United States and claimed to have done so for at least 10 years in both countries. Shaw was not licensed by EPE to use any of EPE’s trademark, copyright or publicity rights. EPE sued Shaw for trademark infringement, violation of its publicity rights, and unfair competition, seeking both money damages and an injunction. After proceeding on discovery, the district court granted EPE’s motion for summary judgment, and issued a permanent injunction in its favor, but did not adjudicate EPE’s claim for money damages. The defendant appealed.

        • Outcome: The court affirmed the lower court’s ruling except as to the scope of the injunction, and remanded to the district court with directions to modify the injunction to narrow it from stating that he could not use the EPE trademarks “for any purpose whatsoever,” because it covered “more than the unauthorized commercial use or exploitation of EPE’s rights. There are various activities that Shaw could engage in that would not violate EPE’s legitimate trademark and publicity rights, such as writing a magazine article or a book about Elvis Presley, or dealing in properly licensed products.”4 The court limited the injunction to prohibit Shaw’s unauthorized use of the publicity rights or trademarks of EPE “for commercial purposes,” and also narrowed the jurisdiction to the United States only.5

        • Special Notes: Among other things, the court determined that Shaw was not precluded in his ability to show a genuine issue of material fact regarding EPE’s efforts to protect its trademarks and publicity rights because the individuals that he had been unable to depose declared that they had no information on these issues.6

      3. Apple Corps Ltd. v. A.D.P.R., Inc., 843 F. Supp. 342 (M.D. Tenn. 1993)

        • Procedural Posture: On plaintiff’s motion for partial summary judgment under the Lanham Act and the TPRPA.

        • Law: Tenn. Code Ann. § 47-25-1105; 15 U.S.C. § 1125 (Lanham Act).

        • Facts: The plaintiffs owned the rights of publicity, trade names, and trademarks at common law of The Beatles music group and of its former members individually. Plaintiffs were solely authorized to “exploit the unique elements and features of The Beatles.”7 Defendants were Beatles impersonators focusing on the years 1964-66; their impersonations were a commercial endeavor, but they did not intend to compete with the Beatles. Defendants distributed promotional and advertising materials, which, plaintiff argued, implied that the performances were sponsored, endorsed, approved, or otherwise authorized by Apple Corps. Defendants disagreed that their advertising and promotional materials created confusion as to sponsorship of their performances, but it was undisputed that defendants had received no sort of approval from or endorsement by plaintiffs. Plaintiffs argued that defendants’ behavior violated the TPRPA and the Lanham Act, and sought injunctive relief to prohibit the defendants from “performing, producing, promoting, publicizing, advertising, or booking performances as a Beatles sound-alike, look-alike band, and from incorporating the name ‘The Beatles’ or the distinctive combination of the names ‘John,’ ‘Paul,’ ‘George,’ and ‘Ringo’ in any performances, or on any products or publications for purposes of trade or advertising.”8 However, the only proof that the plaintiffs submitted on the issue of public confusion was an affidavit from their general manager alleging that there is, or will likely be, public confusion. Defendants submitted the affidavit of a group member stating that they never intended to mislead the public into believing that the group was approved by Apple Corps or the Beatles.9 Notably, it was undisputed that the goal of defendants’ group was to look and sound as much like The Beatles as possible, and they used the likenesses of The Beatles to promote their shows.

        • Outcome: The court denied plaintiffs’ motion for partial summary judgment as to the Lanham Act claim, but granted plaintiffs’ motion for partial summary judgment under the TPRPA. “Defendants have misappropriated the names and likenesses of The Beatles, using them for Defendants’ own commercial gain. It is desirable that the law protect an individual’s right to control the commercial use of his or her name likeness.”10 Although the plaintiffs failed to put forth sufficient evidence to show a trademark violation, they did show that the defendants’ use of the likenesses of the Beatles to promote their band violated the TPRPA. Moreover, the court found an injunction appropriate because plaintiffs could not be adequately compensated through money damages; the main priority was that they be able to control the commercial use of the Beatles’ likenesses and names.

        • Special Notes: The Court based its ruling in relevant part on the logic of a New York court in Onassis v. Christian Dior-New York, Inc.11 There, the court determined that the defendant had violated a similar New York statute by using a Jacqueline Onassis look-alike in a clothing advertisement. The court rejected defendant’s argument that it had not violated the statute because the photograph was not of Onassis herself, but rather, of someone who looked very much like her.12 Thus, the key question under the TPRPA is whether the use of plaintiff’s likeness caused financial loss or some other type of damages to the plaintiff, regardless of how plaintiff’s image was used.

      4. Gauck v. Karamian, 805 F. Supp. 2d 495 (W.D. Tenn. 2011)

        • Procedural Posture: Plaintiff moved for injunctive relief arising from her allegation that defendants were using her likeness and images on their website for profit in violation of the TPRPA.

        • Law: Tenn. Code Ann. § 47-25-1105.

        • Facts: Plaintiff was a news reporter for Fox News in Memphis, Tennessee. In April 2011, she learned that she was the putative subject of two internet posts submitted by a third party to a website called “TheDirty.com.” The authors of the posts claimed that plaintiff used illicit drugs, was sexually promiscuous, exchanged sexual favors in exchange for drugs and money, and assaulted an unknown person. Shortly after learning of the posts, plaintiff contacted the defendants and requested they remove the posts and photographs. Although the posts were removed, there was a dispute between the parties as to whether the defendants intentionally reposted the pictures after she commenced the lawsuit. Plaintiff sought to enjoin defendants from republishing the posts and photographs, and asserted that they were using her likeness and persona to their benefit because she drew more hits to their site.

        • Outcome: The court denied the motion for preliminary injunction because the plaintiff was unable to put forth any evidence showing that the site specifically used her name or image in an effort to draw more users to the site or solicit more traffic. The court cited several persuasive cases from other jurisdictions analyzing similar factual scenarios and found that the distinction between the plaintiffs in those cases and the plaintiff here was that the other plaintiffs were able to specifically show that the use of their image or name conferred a “direct, non-incidental benefit” onto the defendant. In contrast, plaintiff did not demonstrate such a connection because she “offered no evidence that defendants marketed their site by emphasizing Plaintiff’s appearance on the site, using portions of the posts in teasers on other sites to draw more visitors, prominently displayed the posts regarding plaintiff on the site, advertised plaintiff’s appearance in connection with the sale of any of defendants’ products, or charged higher premiums to advertisers for advertising space on the pages pertaining to Plaintiff.”13

        • Special Notes: The TPRPA requires a causal connection between the unauthorized use of the plaintiff’s name or image in an advertisement or solicitation to defendant’s benefit and plaintiff’s detriment.14

    4. Practice Pointers

      • The key issue is whether a plaintiff can prove a causal connection between a defendant’s incidental use of the plaintiff’s persona and a benefit to the defendants from that use, such as an increase in defendant’s profits, etc. It does not matter if defendants are “impersonating” plaintiff as long as they are making use of, and profiting from plaintiff’s image without plaintiff’s consent.15

      • Note that a violation of the TPRPA may be difficult to prove depending on the evidence of damages, and whether it is possible to isolate different aspects of the defendants’ profits, so as to attribute them to plaintiff versus another person/item.

    1. Cordell v. Detective Publ’n, Inc., 307 F. Supp. 1212, 1215 (E.D. Tenn. 1968). 

    2. Id. at 1219-20. 

    3. Id. at 1220 (dismissing plaintiff’s claims for relief). 

    4. Elvis Presley Enter., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 896-97 (6th Cir. 1991). 

    5. Id. at 897. 

    6. Id. at 894 (noting that the affidavits by the parties in question suggested that Shaw was only seeking to depose them in order to harass or annoy them). 

    7. Apple Corps Ltd. v. A.D.P.R., Inc., 843 F. Supp. 342 (M.D. Tenn. 1993). 

    8. Id. at 345. 

    9. Id

    10. Id. at 349. 

    11. 122 Misc. 2d 603, 472, N.Y.S.2d 254 (N.Y. Sup. Ct. 1984). 

    12. Id. at 610 (finding that defendant violated New York’s privacy statute, which was “intended to protect the essence of the person, his or her identity or persona from being unwillingly or unknowingly misappropriated for the profit of another”). 

    13. Gauck v. Karamian, 805 F. Supp. 2d 495, 502-03 (M.D. Tenn. 1993). 

    14. Id

    15. Apple Corps, 843 F. Supp. at 349 (“We are dealing with actuality and appearance, where illusion often heightens reality and all is not quite what it seems. Is the illusionist to be free to step aside, having reaped the benefits of his creation, and permitted to disclaim the very impression he sought to create? If we were to permit it, we would be sanctioning an obvious loophole to evade the statute.”) (citing Onassis, 122 Misc. 2d at 612). 

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