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Result on 2009-08-02
- Here, defendants' posting of plaintiff's photographs on ATAModels.net and their submission of her photograph to
  Don Diva magazine constitute sufficient evidence of the commercial value in plaintiff's likeness. Nevertheless, additional evidence presented by plaintiff, specifically, that plaintiff has contracted to model clothing in a fashion show, to play an extra in a music video, and to work as an exotic dancer, supports a finding that there is value in associating an item of commerce with plaintiff's identity.
- Second, defendants benefited from the use of plaintiff's photographs. The posting on ATAModels.net demonstrated defendants' photography skills and the pictorial in
  Don Diva magazine advertised their website, EyeCandyModeling.com.
Link Viewer on 2009-07-19
- Olan Mills, Inc. v. Dodd, [FN14] expressly recognized a cause of action for invasion of privacy, albeit one limited to the facts of that case. The dispute arose when the defendant photography company used the plaintiff's portrait, which it had taken in the ordinary course of business, for advertising purposes. While the plaintiff had obviously permitted the photograph to be taken, she simply wanted it for her daughter and did not consent to its use in an advertising campaign. The plaintiff claimed humiliation and embarrassment as a result of her unwilling association with the defendant's promotional efforts, and the jury awarded $2,500 in damages. The supreme court affirmed, holding that a plaintiff may recover damages for “humiliation and mental suffering in the absence of any physical injury . . . for violation of the right t
- There may be circumstances in which the ability to protect or exploit one's likeness collides with freedom of speech and press, although the First Amendment does not provide an absolute shield from suits based on either appropriation or publicity theories.
Find Result - 867 F.Supp. 1009 on 2009-05-20
- republication of photograph in promotional brochure, which photograph had previously been published in a prior brochure, resulted in separate cause of action for unauthorized use of personality to promote product;
Result on 2009-03-08
- We decline to apply such a broad interpretation to G.L. c. 214, s 3A. The statutory scheme of Massachusetts differs from that of New York. The caption of New York Civil Rights Law s 50 is “Right of Privacy,” although the term *748
  nowhere appears in the text of the statute itself.[FN4] Even if it might be said that this wording invited broad construction, it would be inappropriate to follow this route in construing G.L. c. 214, s 3A, because our Legislature has provided a separate statute, G.L. c. 214, s 1B, with the caption “Right of Privacy,” which reads in pertinent part, “A person shall have a right against unreasonable, substantial or serious interference with his privacy.” [FN5] In order to avoid creating an unwarranted statutory redundancy where none actually exists, we must interpret G.L. **850
  c. 214, s 3A, in a way that permits it to perform its intended function without overlapping the function of the Right of Privacy statute.
- A sharp distinction must therefore be drawn between the interest which is protected by the New York “Right of Privacy” statute and that which is protected by G.L. c. 214, s 3A. In *749
  Themo v. New England Newspaper Publishing Co., 306 Mass. 54, 57, 27 N.E.2d 753, 755 (1940), this court characterized the right of privacy as a right which “directly concerns one's own peace of mind.” In contrast, the interest which is protected by G.L. c. 214, s 3A, is the interest in not having the commercial value of one's name, portrait or picture appropriated to the benefit of another. The value of one's name, portrait or picture is not appropriated “when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity.” See Restatement (Second) of Torts s 652C, comment d (1977). Thus, the crucial distinction under G.L. c. 214, s 3A, must be between situations in which the defendant makes an incidental use of the plaintiff's name, portrait or picture and those in which the defendant uses the plaintiff's name, portrait or picture deliberately to exploit its value for advertising or trade purposes.
- 1 more annotations...
- - he instant case is one of incidental use of the plaintiff's picture and not *751
    an actionable appropriation of that picture for trade or advertising purposes. Here the photograph was published in connection with what is apparently a sociological commentary, and not as a means of soliciting sales or in association with an advertisement of any kind. The article or story involved, whether it be viewed as an effort to inform or entertain the readership, is a legitimate, noncommercial use. The fact that the defendant is engaged in the business of publishing the Atlantic Monthly magazine for profit does not by itself transform the incidental publication of the plaintiff's picture into an appropriation for advertising or trade purposes.
Result on 2009-03-08
- Mass. Gen. Laws c. 214 § 3A provides,
  inter alia, that “[a]ny person whose name, portrait or picture is used within the commonwealth for advertising purposes or for the purposes of trade without his written consent ... may recover damages for any injuries sustained by reason of such use.” The statute protects an individual's interest in preventing “the commercial value of one's name, portrait, or picture appropriated [for] the benefit of another.”
  Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 749, 400 N.E.2d 847 (1980). However, the value of one's name or picture “is not appropriated ‘when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes *140
  of publicity.’ ”
  Id. at 749, 400 N.E.2d 847 (quoting Restatement (Second) of Torts § 652(c), comment d (1977)). “ ‘The fact that the defendant is engaged in the business of publication, for example of a newspaper, out of which he makes or seeks to make a profit, is not enough to make the incidental publication a commercial use of the name or likeness' ”.
  Id. (quoting
  Nelson v. Maine Times, 373 A.2d 1221 (Me.1977));
  Tropeano, 379 Mass. at 749, 400 N.E.2d 847 (dismissing commercial use claim because plaintiff's photograph was published as part of commentary, not as means of soliciting sales or in association with an advertisement).
- Albright asserts that defendants profited directly from the use of his name in connection with the picture because it helped sell books and get publicity for the Book in various magazines and news articles. Albright's argument falls squarely under the example of a newspaper that seeks to make a profit but merely incidentally uses a plaintiff's name or likeness.
  See id.;
  Morrell v. Forbes, Inc., 603 F.Supp. 1305 (D.Mass.1985)(finding publication of plaintiff's photograph in connection with magazine's story on organized crime did not constitute appropriation for advertising or commercial purposes);
  Kleinerman v. Hodge, 1996 WL 1186891 (Mass.Super.1996)(finding incidental use where newspaper published plaintiff's photograph in connection with article printed for the general interest it would evoke). Albright relies on the fact that he was paid for his story to show its commercial value, but this fact does not transform the use into the type of advertising use that the statute prevents.
- 2 more annotations...
- - Mass. Gen. Laws c. 214 § 1B does provide a cause of action for invasion of privacy. The statute provides “[a] person shall have a right against unreasonable, substantial or serious interference with his privacy.” The statute has been interpreted to prevent the revelation of an individual's private information.
    See
    Tower v. Hirschhorn, 397 Mass. 581, 586-87, 492 N.E.2d 728 (1986)(disclosure without patients' consent of confidential medical information would be sufficient to warrant finding of invasion of privacy);
    Bratt v. Int'l Business Mach. Corp., 392 Mass. 508, 467 N.E.2d 126 (1984)(disclosure of private information regarding employees could constitute invasion of privacy). However, Albright's claim sounds in defamation, not invasion of privacy, because he objects to the making of a
    false statement, not the revelation of private information.
  - To the extent that the Book reveals substantial private information regarding Albright's personal relationships, there is no issue. Albright voluntarily sold that information. What Albright is objecting to is the one photograph that allegedly falsely implies that he is gay. Albright's arguments under *141
    this claim clearly refer to his defamation claim, which I have already found insufficient.^FN13
Result on 2009-03-08
- [8] The court also concludes that the plaintiff is likely to prevail on his claim that the defendants' use of the plaintiff's name and picture is contrary to M.G.L. c. 214, § 3A. That section provides:
- Any person whose name, portrait or picture is used within the commonwealth for advertising purposes or for the purposes of trade without his written consent may bring a civil action in the superior court against the person so using his name, portrait or picture, to prevent and restrain the use thereof ...
  
  The Supreme Judicial Court of Massachusetts has stated that “the interest which is protected by G.L. c. 214, § 3A, is the interest in not having the commercial value of one's name, portrait or picture appropriated to the *954
  benefit of another.”
  Tropeano v. The Atlantic Monthly Co., 379 Mass. 745, 400 N.E.2d 847, 850 (1980).
  
  While the plaintiff previously authorized the defendants' use of his picture, it is clear that he does not do so now. Similarly, while the plaintiff at one time authorized the defendants' use of his name in the title of the defendants' publications without the payment of royalties, he now no longer does so. The plaintiff has thus made a showing that he will more likely than not succeed on the claimed violation of M.G.L. c. 214, § 3A.
Result on 2009-03-08
- Plaintiff's second theory of liability is based on Mass.G.L. c. 214, § 3A, which forbids the unauthorized use of a person's name, portrait or picture for advertising purposes or for purposes of trade. It would appear that the decision of the Supreme Court in Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), which contained a claim under the New York State Right to Privacy statute, was adverse to the plaintiff. The New York statute was *789
  similar in language and import to Mass.G.L. c. 214, § 3A. Thus, it would appear that defendants' First Amendment privilege would override any cause of action under the Massachusetts statute.
Result on 2009-03-08
- 1.
  G.L. c. 214, § 3A. This statute provides in material part: “Any person whose name ... is used ... for the purposes of trade without his written consent **17
  may bring a civil action ... and may recover damages for injuries sustained....” It is clear that, when the defendant responded truthfully to an interrogatory that he had consulted with the plaintiff, he did not use such name “for the purposes of trade” as that term is used in the statute. It may be too much to say that the defendant was compelled to disclose the plaintiff's name. However, in pursuit of compliance with the spirit of full discovery promoted by the Massachusetts Rules of Civil Procedure (see Mass.R.Civ.P. 26[b][4], 365 Mass. 772 [1974] ), the defendant's disclosure of the plaintiff's name is hardly blameworthy or actionable. See
  Ager v. Jane C. Stormont Hosp. & Training Sch., 622 F.2d 496, 501 (10th Cir.1980).
  
  In this connection, we are not oblivious to the potential abuse for which such disclosure may be used. It is all too clear that the use of prominent names in a specialty implicated in a case may be useful in forcing a settlement. An expert should be protected from such exploitation if he has been a stranger to the litigation. However, the plaintiff here was no stranger to the litigation because he and his assistant had discussed the case with the defendant and with the attorneys in the defendant's law office and even expressed an interest in it.
Result on 2009-03-08
- Plaintiff McMann's first claim is for invasion of his statutory right of privacy under Massachusetts law. “A person shall have a right against unreasonable, substantial or serious interference with his privacy.” ^FN49 The Massachusetts Supreme Judicial Court has explained this right:
  
  FN49. Mass. Gen. Laws ch. 214, § 1B (2006).
  
  “The notion of a right of privacy is founded on the idea that individuals may hold close certain manuscripts, private letters, family photographs, or private conduct which is no business of the public and the publicizing of which is, therefore, offensive. The appearance of a person in a public place necessarily involves doffing the cloak of privacy which the law protects.” ^FN50
  
  FN50.
  Cefalu v. Globe Newspaper Co., 8 Mass.App.Ct. 71, 391 N.E.2d 935, 939 (1979)
  
  Publishing a description of business activity, describing a posting made on a public message board, or distributing a publicly available portrait photograph all resemble publishing appearances made in a public place. These activities do not impinge this right of privacy.
- Mr. McMann also has the right to prevent others from using his likeness for advertising purposes.^FN51 The right protected in this statute is the “interest in not having the commercial value of one's name, portrait or picture appropriated to the benefit of another.” ^FN52 This right is not infringed when Mr. McMann's portrait “is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity.” ^FN53 By posting Paul McMann's photograph on his webpage, John Doe did not attempt to employ the photo for commercial value, but rather as part of a declaration of his opinion of Mr. McMann. John Doe has not infringed Mr. McMann's statutory rights to prevent appropriation of his name or likeness for commercial gain.
  
  FN51. Mass Gen Laws. Ch 214, § 3A (2006).
  
  FN52.
  Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 400 N.E.2d 847, 850 (1980) (dismissing plaintiff's claim where defendant was merely reporting on plaintiff's situation).
  
  FN53.
  Albright v. Morton, 321 F.Supp.2d 130, 139-140 (D.Mass.2004).
Find Result - 70 F.3d 206 on 2009-03-08
- Third, the district court concluded that Donoghue was likely to prevail on his claim that the Defendants-Appellees used his name and photograph in a manner that violated Mass.Gen.L. ch. 214 § 3A (Count II). The section of the statute quoted by the district court reads:
  
  Any person whose name, portrait or picture is used within the commonwealth for advertising purposes or for the purposes of trade without his written consent may bring a civil action in the superior court against the person so using his name, portrait or picture, to prevent and restrain the use thereof....
  
  Mass.Gen.L. ch. 214 § 3A. The court found that “[w]hile the plaintiff previously authorized the defendants' use of his picture, it is clear that he does not do so now.”
  Donoghue v. IBC/USA (Publications), Inc., 886 F.Supp. at 954. Thus, Donoghue was likely to prevail on Count II.