Bullard v. MRA Holding, LLC

• Decision Date: 27 August 2012
• Docket Number: Civil Action No. 1:04–cv–02407–JEC.
• Citation: 890 F.Supp.2d 1323
• Parties: Lindsey BULLARD, Plaintiff, v. MRA HOLDING, LLC, and Mantra Films, Inc., Defendants.
• Court: U.S. District Court — Northern District of Georgia

890 F.Supp.2d 1323

Lindsey BULLARD, Plaintiff,

v.MRA HOLDING, LLC, and Mantra Films, Inc., Defendants.

Civil Action No. 1:04–cv–02407–JEC.

United States District Court,

N.D. Georgia,

Atlanta Division.

Aug. 27, 2012.

Jeff Banks, Attorney at Law, Rome, GA, Sarah Riedel, Banks & Reidel, Kennesaw, GA, for Plaintiff.

J. Scott Carr, Wargo & French, LLP, Atlanta, GA, for Defendants.

ORDER AND OPINION

JULIE E. CARNES, Chief Judge.

This case is before the Court on defendant MRA Holding, LLC and defendant Mantra Films, Inc.'s (the “defendants”) Motion for Summary Judgment [179]. For the reasons that follow, defendants' Motion for Summary Judgment [179] is GRANTED in part as to all but the appropriation claim. The resolution of defendants' motion relating to the appropriation claim depends on unsettled questions of Georgia law. Accordingly, the Court DENIES without prejudice defendants' motion for summary judgment on that claim and CERTIFIES the question to the Supreme Court of Georgia.

BACKGROUND

This case arose from the defendants' use of plaintiff Lindsey Bullard's videotaped image in one of the infamous Girls Gone Wild videos,¹ as well as in marketing for that video. Created by entrepreneur Joe Francis, the Girls Gone Wild series features young, and sometimes underage, women in states of partial or total nudity, and sometimes performing more explicit sex acts.

In April of 2000, plaintiff, who was then 14 years old,² traveled to Panama City, Florida for spring break. (Bullard Dep. [38] at 5.) ³ Plaintiff was chaperoned on this trip by her next-door-neighbors, Crystal and Paul Osman, whose two daughters, along with two additional girls, were on the trip. ( Id. at 7.)

One evening during that vacation, plaintiff was walking with two of the girls down Thomas Drive, which is known, unfacetiously, as “The Strip.” ( Id. at 7, 15–16.) Two men approached the girls with a video camera and asked them to step off of the strip into a parking lot and show them their “boobs.” ( Id. at 16–19.) Neither of the men identified themselves, nor were they wearing any clothing identifying them as affiliated with Girls Gone Wild. ( Id. at 17.) Plaintiff showed them her breasts and one of the men recorded the act with his video camera. ( Id. at 19.) The only thing plaintiff received from the two men was a beaded necklace. (Bullard Dep. [38] at 20.)

Defendants purchased plaintiff's recorded indiscretion from another entity and incorporated her clip into a videotape produced and sold by defendants, entitled Girls Gone Wild, College Girls Exposed, Volumes 1 and 2. (Francis Dep. [47] at 12–14; Guttman Dep. [51] at 40.) A photograph of plaintiff exposing her breasts also appears prominently on the cover of this videotape box. (Video Cover, attached to Pl.'s Resp. to Defs.' Mot. for Summ. J. [180] at Ex. 1.) Unlike the recording itself, however, plaintiff's otherwise exposed breasts are blocked out with the imperative, “Get Educated!” ( Id.) This image also appeared in television commercials and on internet advertisements that promote defendants' products, including television commercials during the Howard Stern Show. (Screen Capture from TV advertisement, id. at Ex. 11; Guttman Dep. [51] at 56–7.)

Defendants have advertised and shipped this tape throughout the continental United States. (Guttman Dep. [51] at 82, 102–3.) Plaintiff did not consent to the use of her image in a Girls Gone Wild video nor to the distribution of that video. (Bullard Aff. [180] at ¶¶ 4–5.)

As a result of the widespread advertising and distribution of the Girls Gone Wild video containing her image, plaintiff suffered great humiliation. She was harassed by faculty and students at school.⁴ (Bullard Dep. [38] at 31–3, 40–44.) Administrators singled her out for discipline, and one of her teachers indirectly sought an “autograph.” ( Id. at 34–35.) In addition to negative remarks, she became known as “Porn Star” by her peers. ( Id. at 42.)

In 2004, plaintiff filed a three-count complaint against defendants. ⁵ The first count consists only of a series of factual allegations that do not specify a cause of action. The second count asserts a claim for “Exploitation of Children.” The third count makes a claim for the appropriation of plaintiff's likeness for commercial purposes. Defendants move for summary judgment on all claims.

DISCUSSION

I. SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides that a motion for summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Where the nonmovant bears the burden of proof, the moving party need only show the absence of evidence to support the nonmovant's case, or affirmative evidence demonstrating that the nonmovant will be unable to prove their case at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115–1116 (1993). An issue is material if, “under the applicable substantive law, it might affect the outcome of the case.” LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1189 (11th Cir.2010). An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. See Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir.2002). Nonetheless, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,” there is no genuine issue for trial. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997).

II. CHOICE OF LAW

Federal courts sitting in diversity cases apply the forum state's choice-of-law rules. Boardman Petroleum, Inc. v. Federated Mut. Ins. Co., 135 F.3d 750, 752 (11th Cir.1998). Georgia is the forum state here. In tort cases, Georgia follows the traditional doctrine of lex loci delicti. Dowis v. Mud Slingers, Inc., 279 Ga. 808, 816, 621 S.E.2d 413 (2005). Under this rule, a tort action is governed by the substantive law of the state where the tort was committed. Id. at 809, 621 S.E.2d 413. The place of the wrong 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.” Risdon Enter., Inc. v. Colemill Enter., Inc., 172 Ga.App. 902, 903, 324 S.E.2d 738 (1984).

Georgia courts have not been called on to decide how to apply choice-of-law principles in a case involving the appropriation of one's likeness through distribution of materials in multiple states. Determining what choice-of-law principles a Georgia court would apply in such a situation is therefore a very uncertain undertaking. See Allison v. Vintage Sports Plaques, 136 F.3d 1443, 1446 n. 6 (11th Cir.1998) (discussing difficulties in application of lex loci delicti in commercial misappropriation case, but ultimately deciding that the law of the forum, Alabama, should apply).

Defendants argue that the law of Florida should apply because that is where the video was shot.⁶ Perhaps, a Georgia court might so decide, but applying the definition cited above in Risdon—the “place where the injury sustained was suffered rather than the place where the act was committed”—plaintiff's injury was suffered most greatly in Georgia. Risdon Enter., Inc., 172 Ga.App. at 903, 324 S.E.2d 738. While defendants distributed plaintiff's image throughout the United States, plaintiff lived and attended school in Georgia, and it was the viewing of the advertisements in Georgia by fellow students and members of the community that led to the ridicule and humiliation that plaintiff suffered as a result of her appearance in the Girls Gone Wild videotape and her prominence on the video cover.

To the extent that the “advertising value” of plaintiff's image constitutes the proper measure of damages, this “injury” was presumably suffered at the place of plaintiff's domicile, which is also in Georgia. At any rate, whether the injury is measured according to the emotional damage or financial damage that ensued, plaintiff was not injured by the act of being videotaped in Florida, which act was not even performed by defendants. She was injured because defendants advertised and disseminated, nationwide, her image as the cover model for the video. Defendants have therefore not shown that Florida would have a greater connection with that injury than would Georgia.

Accordingly, because defendants distributed merchandise containing plaintiff's image throughout the United States, not just in Florida, and because plaintiff resided in Georgia at the time the appropriation occurred, the Court will assume that Georgia law controls.⁷See Allison, supra. Cf. Martin Luther King, Jr., Ctr. for Soc. Change, Inc. v. Am. Heritage Prods., Inc., 250 Ga. 135, 296 S.E.2d 697 (1982) (applying Georgia law, where plaintiff was domiciled and where Dr. King had lived, when defendant marketed plastic busts bearing Dr. King's likeness in 80,000 copies of newspapers across the country).

III. COUNTS I AND II

Count I of plaintiff's complaint is a series of factual allegations that do not expressly designate the violation of a statute or duty. Count II, titled “Exploitation of Children,” simply alleges that “defendants knowingly distributed obscene materials, ... a child in a state of partial nudity, a product specifically designed for sexual arousal and sexual stimulation.” (Compl. [1] at ¶ 31.) Defendants correctly note that Count I states no cause of action. As to Count II, defendants further argue that a cause of action for criminal behavior that exploits children is unavailable as a private right of action under Georgia law and, even if it were, plaintiff...