Law School Case Brief
Bullard v. MRA Holding, LLC - 292 Ga. 748, 740 S.E.2d 622 (2013)
An appropriation of likeness claim in Georgia is but one of several different torts relating to the invasion of one's privacy. There are four disparate torts under the common name of invasion of privacy. Those 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 regard to an appropriation claim, unlike a claim based on intrusion, disclosure, or false light, appropriation, also recognized with respect to a celebrity's right of publicity, does not require the invasion of something secret, secluded or private pertaining to a plaintiff, nor does it involve falsity. Instead, the tort consists of the appropriation, for the defendant's benefit, use or advantage, of the plaintiff's name or likeness. Because of that, the 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.
The doctrine of lex loci delicti has served the resolution of conflict of laws issues in tort actions in Georgia for nearly 100 years. The place where the tort was committed, or, the locus delicti, is the place where the injury sustained was suffered rather than the place where the act was committed, or, as it is sometimes more generally put, it is the place where the last event necessary to make an actor liable for an alleged tort takes place.
In the spring of 2000, 14-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 questions to the state supreme court. The questions sought to clarify if Georgia law governed Bullard’s appropriation of likeness claim.
Does Georgia law govern Bullard’s appropriation of likeness claim? If so, did the facts stated give rise to a cause of action under Georgia law for appropriation of Bullard’s image?
The Supreme Court of Georgia held that the substantive law of Georgia governed MRA’s potential liability since the video was distributed nationwide, including in Georgia, and Bullard lived and attended school in Georgia. According to the court, the state of Georgia has followed the doctrine of lex loci delicti in tort cases, pursuant to which the substantive law of the state where the tort was committed governed a tort action. The doctrine of lex loci delicti has served the resolution of conflict of laws issues in tort actions in Georgia for nearly 100 years. The place where the tort was committed, or, the locus delicti, was the place where the injury sustained was suffered rather than the place where the act was committed, or, as it was sometimes more generally put, it was the place where the last event necessary to make an actor liable for an alleged tort took place. Furthermore, the court held that Bullard sufficiently pled a cause of action for appropriation, noting that Georgia law did not require a preexisting commercial value to a name and likeness before a wrongful appropriation would take place. The court addressed the available damages to Bullard and held that her consent to being videotaped did not constitute consent for MRA to commercially distribute her likeness.
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