The court ruled, according to a Georgia Supreme Court press release, that a young woman who was 14 when she exposed her breasts during spring break to two men with a video camera has grounds to sue under Georgia law. The man later sold the clip for use in the “College Girls Gone Wild” video series without her consent.
Under Thursday’s unanimous opinion, written by Justice Harold Melton, the high court has answered a number of questions certified to it by the United States District Court for the Northern District of Georgia, concluding that the young woman has the right to file an “appropriation of likeness” claim against the video’s producers and that “such a claim is controlled by Georgia law,” even though the tape was shot in Florida.
According to the federal court, in April 2000, Lindsey Bullard of Cartersville, whose maiden name is Boyd, went to Panama City, Fla., for spring break with her next-door neighbors, their two daughters and two other girls. Then 14, Lindsey and the girls were walking down Thomas Drive, known as “The Strip,” when two men approached with a video camera and asked them to step into a parking lot and show them their breasts. The men did not identify themselves or divulge any affiliation with “Girls Gone Wild.” Lindsey complied and flashed her breasts, joining in what has apparently become a spring break tradition among some girls who agree to bare themselves to a male onlooker in return for cheap, plastic beads. One of the men gave Lindsey a beaded necklace, according to briefs filed in the case.
MRA Holding, Inc. and Mantra Films, Inc., who are in the video production business, purchased the recording of Lindsey and incorporated it into a videotape sold as “Girls Gone Wild, College Girls Exposed.” Created by Joe Francis, the “Girls Gone Wild” series features young, and sometimes underage, women who are partially or totally nude and sometimes performing explicit sex acts. MRA placed a still photo of Lindsey from the video clip on the cover of the videotape, which it later marketed and sold nationwide. MRA blocked out Lindsey’s breasts by superimposing over them the inscription, “Get Educated!” Her image also appeared in television commercials and internet advertisements promoting the series.
In 2004, Lindsey sued MRA and Mantra Films, seeking damages for their alleged unauthorized use of images of her exposed breasts in a nationally distributed video series. She argued she suffered humiliation and injury from teachers and peers and had to change schools three times to try to alleviate the suffering caused by the videos. MRA and Mantra Films argued that Florida law should govern the case and that Lindsey’s lawsuit lacked merit because she placed no restrictions on how her image would be used.
In an opinion issued Aug. 27, 2012, Chief Judge Julie Carnes of the U.S. District Court wrote, “Unfortunately, the very scant Georgia law on this subject provides no clear answer as to whether the plaintiff has a viable claim.” The judge asked the state Supreme Court to answer a number of questions related to Georgia law, including whether Georgia law governs Lindsey’s “appropriation of likeness” claim.
“Yes,” according to Thursday’s opinion, because for more than 100 years, Georgia has followed the doctrine that the place where the wrongdoing occurred “is the place where the injury sustained was suffered rather than the place where the act was committed.”
“Bullard lived and attended school in Georgia, where she would have sustained any injury that resulted from the distribution of her image,” the opinion read. “Since Georgia is the state ‘where the injury sustained was suffered,’ Georgia law controls here.”
The 15-page opinion answers each of the more than five questions posed by the federal court. Among the questions was whether the facts of the case would support a lawsuit under Georgia law for appropriation of likeness and, if so, what the elements of such a claim would be.
“Yes,” the state Supreme Court again responded, citing previous opinions, in which the court has found that an appropriation of likeness claim relates to invasion of privacy and consists of: (1) the appropriation of another’s name and likeness, (2) without consent and (3) for the financial gain of the appropriator. “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,” the opinion stated.
In response to whether by consenting to being videotaped, the 14-year-old also consented to having the clip incorporated into a videotape with her photo on the cover that would be commercially distributed, the high court answered: “No.”
While the court has specifically declined to answer whether Lindsey could have legally consented to having her image used in the video due to her age, it has concluded that her consent to allow the men to film her “would not be the equivalent of consenting to have one’s image placed on the cover of the packaging of a commercially distributed video tape as an endorsement of the product being sold.”