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Under the appropriation theory it is not enough alone that there be appropriation of plaintiff's name or likeness; there must be an appropriation for the defendant's benefit, use or advantage upon which to predicate liability against that defendant. Recovery under this theory is measured by the unjust enrichment of the defendant and not by the injury to plaintiff's feelings or reputation.
Plaintiff, Lillian Hipsley, had been an exotic dancer for the past six years. In 1960, plaintiff had been photographed for the purpose of advertising herself and her act at various night clubs and show places throughout the United States. Defendants, C. B. Cabaniss, individually and as publisher of Gay Atlanta magazine, and On The Town, Inc., d/b/a Atlanta's Playboy Club, had obtained a copy of the photograph in some unknown manner and, without plaintiff’s knowledge or consent, had published it for several weeks in an advertisement carried in the magazine Gay Atlanta inviting the public to Atlanta's Playboy Club. Plaintiff filed an action against defendants, claiming (1) intrusion upon the plaintiff's seclusion or solitude, or into her private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which placed the plaintiff in a false light in the public eye; (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness. Plaintiff sought to recover damages from the defendants. The trial court entered judgment for the plaintiff. Defendants appealed.
Was the plaintiff entitled to recover damages when her photograph was appropriated for commercial exploitation without her consent?
On appeal, the court held that there was no evidence to sustain the plaintiff’s claim that the defendants intruded upon her seclusion or solitude, or into her private affairs. Also, there was no evidence to support the plaintiff’s claim that the photograph was private or was offensive and objectionable. The court determined that the only falsity or fiction was that the plaintiff was falsely pictured as appearing at the club under the wrong stage name. Therefore, the court concluded that the plaintiff was not presented in a false light. The court held that the plaintiff was not entitled to recover damages, including punitive damages, even though her photograph was appropriated for commercial exploitation without her consent. Additionally, the evidence did not support the verdict or the award of damages against the defendant publisher because his participation was passive. Accordingly, the trial court’s judgment was reversed.