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Minnifield v. Ashcraft - 903 So. 2d 818 (Ala. Civ. App. 2004)


Liability for commercial appropriation arises when one's name or likeness is appropriated by another to the other's use or benefit. No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded.


Wendy Minnifield sued Ashcraft and Skin Worx, Inc., alleging invasion of privacy arising out of photographs of a tattoo on Minnifield's upper right *** that Ashcraft submitted, without Minnifield's permission, to "Dark Skin Art," a national tattoo magazine. Minnifield alleged that the publication of the photographs embarrassed, degraded, and demeaned her, causing her mental anguish and emotional distress. Ashcraft and Skin Worx moved for a summary judgment, arguing that Minnifield was not entitled to damages under the tort of defamation as a result of the publication of the photographs and that she had signed a general release form releasing Ashcraft and Skin Worx from any liability. The trial court entered a summary judgment in favor of Ashcraft and Skin Worx. Minnifield appealed.


Did the lower court err in entering a summary judgment in favor of Ashcraft and Skin Worx in Minnifield’s commercial appropriation claim?




The intermediate court held that Minnifield asserted a commercial appropriation claim, while Ashcraft and Skin Worx only addressed a defamation claim. Minnifield was identifiable in a photograph. As a caption beside the photographs when they were submitted identified Ashcraft and Skin Worx, they sought a commercial benefit from the publication. As the submission of the photographs for publication did not pertain to a legitimate newsworthy public interest, the publication was not protected under the legitimate public interest exception. While Minnifield claimed psychological damages, the intermediate court could not say that the commercial appropriation tort excluded psychological damages. Finally, a release signed by Minnifield was construed against the drafters, Ashcraft and Skin Worx. So construed, the claim was not released as it was based on the publication of the photographs, not on a decision to obtain a tattoo. Moreover, releases purporting to discharge intentional torts were against public policy.

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