Let’s start my guest-blogging with a softball, lobbed right here in my own backyard of New York City:
A woman has filed a lawsuit against a pet cremation service and a photo agency, claiming they used a photo of her posing with her dogs, Chickie and Tiny, without her permission.
…
Cecala, whose lawsuit seeks $3 million, said she never gave permission to have the photo used for “something of such a morbid nature[.]”
Where to begin?
Put aside any contractual issues — it doesn’t appear that Ms. Cecala was even a party to a contract — and breach of contract doesn’t allow for punitive damages anyway.
At common law there is indeed a privacy tort called “misappropriation” — see Restatement of Torts (Second), §652C.
One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy.
The problem of course is that the tort of misappropriation is generally intended to apply to celebrities — to prevent people from attempting to “free ride” the value of an already valuable name or likeness. The name or likeness of a private person such as Ms. Cecala has no commercial value — hence there is nothing to misappropriate.
And, of course, the idea that such an act, even if somehow tortious, is worth $3 million is preposterous. I’d love to see the breakdown of compensatories and punitives in the complaint.
The mere taking of a person’s photograph (especially with their consent) is not, without more, an invasion of privacy. Which means it also not a lawsuit. And certainly not a $3 million lawsuit.
Let’s hope for a prompt dismissal.
7 Comments
KipEsquire’s analysis is fine under the common law, but New York has a statutory right to privacy under sections 50 and 51 of the Civil Right’s law that criminalizes the conduct complained of.
The next question is how much is the commercial use of Plaintiff’s picture really worth? Constitutionally, Plaintiff is entitled to a jury trial for amounts in controversy greater than $20.00. The jury may very well award a few thousand dollars, but the cost to defend is immense. As a result, Plaintiff may be able to extract much more money ($20K or so), than the case is inherently worth (a few thousand) but nowhere near the amount demanded in the suit. Better write to your legislature to change the law!
P.S. Most advertizing agencies are very careful to ensure that they have the proper Section 50-51 releases and copyright licenses for their use of pictures. It would not surprise me if Defendant moves for summary judgment based on a release that they have that Plaintiff may have forgotten about.
Her likeness obviously does have commercial value, or else the cremation service wouldn’t want to use it in its advertising. The picture was described as having been taken by an amateur photographer who later sold it, so it sounds like whatever customary releases a professional photographer would obtain may not exist in this case.
Anecdotally, it’s worth noting that reality TV shows typically do not follow Kip’s assertion that privacy is only a matter for celebrities. Generally, the faces of extraneous people or people who decline to participate in filming are blurred out.
Well if she is “outraged, embarrassed and traumatized” it sounds like she is going for defamation instead of misappropriation. Was her photo used such that a reasonable person might assume she had her dogs cremated? Perhaps she is morally opposed to cremation?
The only sensible reaction to the obviously incomplete story is “what is the rest of the story?”
The papers NEVER get it right. Look at the MacDonald’s coffee scalding case. That case is not the pister child for legal excess– but in reality, it was as legit as a case can be. And Stella only used when MacD’s told her to pound sand when she asked for her medical bilks to be paid. (She required skin grafts.)
The jury was outraged when they were informed that McD’s had repeatedly ignored warnings tyat their coffee was too hot. and, it was a tad foreseeable that someone drinking coffee obtained in a drive through window would put it in a stable place.. their lap, between their legs! (Can you say Palzgraf?) Oh– and the jury assigned a percentage of fault to the plaintiff.
But the papers reported this case in such a way that the public was indignant. NO ONE told the real story.
We, as lawyers, really must do better!
The mere taking of a person’s photograph (especially with their consent) is not, without more, an invasion of privacy.
It’s a question of using it commercially. Even newspaper photographers ask subjects to sign a publication release.
I’m a professional photographer, and I’m always very careful to have the appropriate releases from any person in a photograph used for commercial purposes. I also get a signed image use license from each customer who will use one of my images in a brochure, or ad…. Today, one of my friends brought me a photo in a magazine in which I was prominently seen. It was a review of a local night-spot that I frequent. I happen to be smack in the center of the image, but there are also a number of other people nearby. I was at a public place and as such had a lesser expectation of privacy. It wasn’t “sold” as a commercial ad for the night-spot but appeared only in the review. The woman who had her image sold to Getty, then used in a commercial ad is indeed due something unless she signed a release before the photo was sold to Getty…… I’m not a lawyer, and I don’t play one on TV.. But I am very cautious!
Carroll Straus,
With as much politness as I can muster, allow me to point out that YOU ar the one not checking “the rst of the story” regarding Stella Liebeck. YOU are the one swallowing the PR drivel in that case.
If you’ll take just a moment and check the “Greatest Hits” section on the right (possibly under the “more about this list” link, as the ones showing are a random sample), you’ll find this link:
https://www.overlawyered.com/2005/10/urban_legends_and_stella_liebe.html
It nicely summarizes the Liebeck case and the myths that have been peddled about it (of which you have been a victim).
Summary: The coffee was serveed at the industry standard termprature (which is still the standard temperature today). The jury verdict in that case was an extreme anomaly (as evidenced by NUMEROUS other essentially identical cases having been thrown out of court), primarily due to the jury mis-interpreting “statistically insignificant” (in reference to the risk of injury from McDonald’s coffee) to mean “We don’t care if people get hurt” instead of “Injuries are extremely, stupendously rare.”
You migh want to stop using that case as a poster child of “legit as a case can be.”
As a lawyer, yes, you must do better.