This case is before us based upon questions certified to this Court by the United States District Court for the Northern District of Georgia*
The alleged facts of this case as reported by the District Court indicate the following: In the spring of 2000, fourteen-year-old Lindsay Bullard exposed her breasts to two unknown men in a parking lot in Panama City, Florida. Bullard was aware that the men were videotaping her at the time and expressed no objection to being videotaped. The two men and Bullard had no discussion about what future use the men might make of the videotape. MRA Holding LLC (hereinafter “MRA”), obtained the recording and included it in its College Girls Gone Wild video series. MRA also used a still photo of Bullard that was taken from the video clip and placed it in a prominent position on the cover of the video box for the College Girls Gone Wild video that it later marketed and sold nationwide. On that image, MRA blocked out Bullard’s breasts and superimposed an inscription, “Get Educated!” in that block. The inscription arguably gave the appearance that Bullard was making this statement. MRA did not obtain Bullard’s permission to use the video footage of her in the College Girls Gone Wild video or to use her photo on the video box cover. Television and internet advertisements were aired that incorporated Bullard’s image. Bullard’s image had no commercial value before appearing on the cover of the College Girls Gone Wild video. Bullard suffered humiliation and injury to her feelings and reputation as a result of the aforementioned use of her image.
Bullard sued MRA in the United States District Court for the Northern District of Georgia for, among other things, appropriation of her likeness. MRA moved for summary judgment, and, in order for the District Court to decide the motion with respect to Bullard’s claim for appropriation of likeness, it certified the following questions to this Court:
1. Does Georgia law govern Bullard’s appropriation of likeness claim when-.
A. Bullard, whose domicile is in Georgia, has been videotaped in Florida;
B. when her clip has been included in a video including images of other such girls, and her image has been placed prominently on the cover of the marketing materials, with a statement arguably attributed to Bullard that she did not make;
C. when that video, along with Bullard’s image and statement on the cover of the video, has been advertised nationally, including in Georgia, and when the video has been marketed and sold nationwide, including in Georgia; and
D. when the emotional injury to Bullard, such as humiliation, ridicule, and othernegative consequences, has occurred in Georgia?
E. If Georgia law does not control, which state’s law does govern the dispute in this case?
2. Assuming that Georgia law does control, do the facts stated above give rise to a cause of action under Georgia law for appropriation of Bullard’s image?
A. If so, and for purposes of instructing a jury, what are the elements of such a claim?
3. If a reasonable jury could find for Bullard on the above facts on an appropriation claim, what type of damages may Bullard recover?
A. If the answer to this question is “the advertising value of the use of the material in the manner and for the time it was appropriated,” is Bullard required to show some preexisting “advertising value” for her image prior to being videotaped or, instead, does the “advertising value” test look to the value of the image of a model who is not known to the public when that image is used on video packaging materials and on television advertisements of a product?
4. On the above facts, does Bullard’s consent to being videotaped constitute consent to the videographer, or his assignees, to incorporate the clip into a video tape that is commercially distributed and to place a photo from that clip on the cover of the video packaging?
5. If, under Georgia law, the answer to Question #4 is “yes,” can Bullard’s consent be rendered invalid if Bullard was a minor?
A. If Bullard’s minor status can undo an otherwise valid consent, does this minor status automatically undo consent in all circumstances?
B. If not, what are the factors that the jury should consider in determining whether the consent of a minor is valid?
We address each question in turn.
1. Does Georgia law govern Bullard’s appropriation of likeness claim?
Yes. As an initial matter, because Bullard filed her lawsuit in a Georgia District Court, the Georgia federal court is to apply Georgia’s conflict of laws rules. Klaxon Co. v. Stentor Elec. Mfg. Co.,
Applying the doctrine to this multi-state commercial appropriation of likeness claim, we conclude that the substantive law of Georgia governs MRA’s potential liability. 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. Since Georgia is the state “where the injury sustained was suffered,” Georgia law controls here. See also Martin Luther King, Jr., Center for Social Change, Inc. v. American Heritage Products, Inc.,
2. Do the facts stated above give rise to a cause of action under Georgia law for appropriation of Bullard’s image, and, if so, what are the elements of such a claim?
Yes. We find that, under the facts as found by the District Court, Bullard states a claim for appropriation of likeness under Georgia law. An appropriation of likeness claim in Georgia is but one of several different torts relating to the invasion of one’s privacy. See Martin Luther King, Jr., supra,
there are four disparate torts under [the] common name [of invasion of privacy]. These four torts may be described briefly as: (1) intrusion upon the plaintiff’s seclusion or solitude, or into his 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) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
With these principles in mind, this Court has held that 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[, and] [3] for the financial gain of the appropriator.” Id. at 143 (1). See also Pavesich v. New England Life Ins. Co.,
Furthermore, because this Court has previously stated that the interest protected in an appropriation case is in the plaintiff’s exclusive use of his or her name and likeness as an inherent “aspect of his [or her] identity” (see Martin Luther King, Jr., supra,
Here, Bullard is a private citizen whose image was arguably used without her consent to endorse an MRA product for MRA’s own commercial gain. See generally Pavesich, supra,
Because, under the facts of this case, Bullard can be seen as endorsing the College Girls Gone Wild video through the use of her image, we find no conflict between Bullard’s “right of privacy and the freedoms of speech and press.” Martin Luther King, Jr., supra,
3. If a reasonable jury could find for Bullard on the above facts on an appropriation claim, what type of damages may Bullard recover ?
As stated previously, “[t]he interest protected (in [an] ‘appropriation’ case[ ]) is not so much a mental as a proprietary one, in the exclusive use of the plaintiff’s name and likeness as an aspect of his identity.” (Citations and punctuation omitted.) Martin Luther King, Jr., supra,
[Recognizing, as we do, the fundamental distinction between causes of action involving injury to feelings, sensibilities or reputation and those involving an appropriation of rights in the nature of property rights for commercial exploitation, it must necessarily follow that there is a fundamental distinction between the two classes of cases in the measure of damages to be applied. In the former class (which we take to include the intrusion, disclosure, and false light aspects of the privacy tort), general damages are recoverable without proof of special damages. In the latter class, the measure of damages is the value of the use of the appropriated publicity.
(Citations and punctuation omitted.) Id.
Accordingly, because Bullard is pursuing an appropriation of likeness claim, her measure of damages would not include general damages. Martin Luther King, Jr., supra,
4. On the above facts, does Bullard’s consent to being videotaped constitute consent to the videographer, or his assignees, to incorporate the clip into a videotape that is commercially distributed and to place a photo from that clip on the cover of the video packaging?
No. In light of our answer to question 2, supra, the answer to this question is that such consent would not be the equivalent of consenting to have one’s image placed on the cover of the packaging of a commercially distributed videotape as an endorsement of the product being sold.
5. If, under Georgia law, the answer to Question #4 is “yes,”can Bullard’s consent be rendered invalid because Bullard was a minor ?
As indicated in our discussion regarding question 2, 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 College Girls Gone Wild video in which her image appeared. Therefore, we need not reach the additional question whether Bullard’s consent could have been rendered invalid due to her age.
Certified questions answered.
Notes
See OCGA § 15-2-9.
Further discussion of the potential viability of Bullard’s appropriation claim under the facts presented here will be included in our response to question 2, infra.