A victim of the online publication of intimate photos or videos may sue the user of the material if s/he can argue that the user is deriving a commercial benefit from the material’s publication.
b. Elements of the Claim
Appropriation (“Right to Publicity”):
(1) defendant’s use of plaintiff’s name, likeness, or identity without plaintiff’s consent;
(2) commercial or other advantage to defendant; and
(3) resulting injury to plaintiff.
- Michaels v. Internet Entertainment Group, 5 F. Supp. 2d 823 (C.D. Cal. 1998).
Procedural Posture: Plaintiff filed a motion for a preliminary injunction to enjoin defendant from disseminating a videotape depicting plaintiff having sex with Pamela Anderson Lee.
Law: Copyright infringement, false designation of origin under the Lanham Act, state-law invasion of privacy based on publicity of the tape over Westwood One’s radio affiliates, violation of California common law right of publicity and violation of the California statutory right of publicity under Cal. Civ. Code § 3344.
Facts: Approximately three years after plaintiff and Lee made a sex tape, defendant (a corporation that distributes adult entertainment material through a subscription service on the internet) sent plaintiff a letter advising him they had acquired the tape and all rights necessary to publish it. Plaintiff’s lawyer advised defendant that plaintiff had not authorized the distribution of the tape and that publication of the tape would violate plaintiff’s copyright therein. The letter included demand that defendant cease and desist from attempts to disseminate or exploit the tape. In 1998, plaintiff registered the tape with the Register of Copyrights. Plaintiff filed an ex parte motion for a temporary restraining order to prohibit defendant from duplicating, publishing, promoting, marketing or advertising the tape, alleging that defendant said it would publish the tape on ClubLove, its internet subscription service. At a deposition, Revilla, the private investigator who gave the tape to defendant, said that the tape had come from one of plaintiff’s associates who had received it as a gift. Revilla negotiated with defendant and made it clear that he was offering “only the physical Tape, not any intellectual property rights in the expression fixed on the Tape.”
- Preliminary injunction granted.
- Right to publicity: “A right to publicity claim is not preempted…where the claim contains elements that are different in kind from copyright infringement.” The court rejected the contention that the claims for right to publicity were preempted by the Copyright Act because the defendants used the plaintiffs’ names, likenesses and identifies on the radio, and internet to advertise the imminent distribution of the sex tape. Court concluded that the “plaintiffs have demonstrated a likelihood of success on the merits of their claim for violation of the CA common law and statutory right to publicity.”
- Injunction: “IT IS HEREBY ORDERED that, pending final judgment or dismissal of this action, defendant IEG and its agents, officers, employees, attorneys, and those acting in concert with them are temporarily restrained from:
1. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of the Michaels/Lee videotape (the “Tape”);
2. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of still photographs from the Tape, captured images from the Tape displayed on the Internet, and/or any downloaded hard copies of images from the Tape;
3. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of all advertising, promotional material, or packaging referring to the Tape;
4. Taking orders for copies of the Tape through the Internet or any other means;
5. Shipping copies of the Tape to those purchasers who already have placed orders for copies of the Tape, or to anyone else; and
6. Using Michaels's or Lee's name, likeness or identity in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services.”
- Ferguson v. American Apparel, Inc. No. BC460331 (L.A. Super. Ct. filed Apr. 26, 2011).
Procedural Posture: Complaint filed in Los Angeles Superior Court on April 26, 2011. On September 9, 2011, defendants’ motion to compel arbitration and stay proceedings was granted. The granting of defendants’ Petition to Compel Arbitration and Stay Proceedings in Lo, et al v. American Apparel, et al, on July 29, 2011 had collateral estoppel effect on Plaintiff Ferguson and Lubans-Dehaven’s claims as they are parties in the Lo lawsuit. The court severed the confidentiality provision in Plaintiff Morales’s Arbitration Agreement and enforced the remainder of the agreements.
Law: Invasion of Privacy – Appropriation of Likeness
Facts: Shortly after Plaintiffs Ferguson, Lubans-Dehaven and Morales filed separate lawsuits against defendants, blogs purportedly published by the plaintiffs appeared on the internet containing plaintiffs’ nude photos and stating that their sexual harassment lawsuits against defendants were frivolous and part of an extortion scheme. Plaintiffs allege that defendants appropriated their likeness for their own advantage as a way to sway public opinion in their favor in regards to the pending lawsuits.
d. Practice Pointers
A survey of California case law involving the common law tort of appropriation only revealed appropriation claims based on commercial advantage. The case law does not provide a discussion of “other advantages” in terms of appropriation. It is therefore unclear what types of “other advantages” might be considered by a court in an appropriation claim.