Coton v. Televised Visual X-Ography, Inc.
| Decision Date | 16 September 2010 |
| Docket Number | Case No. 8:07-CV-1332-T-TGW |
| Citation | 740 F.Supp.2d 1299 |
| Parties | Lara Jade COTON, Plaintiff, v. TELEVISED VISUAL X-OGRAPHY, INC., and Robert Augustus Burge, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Richard Anthony Harrison, Allen Dell, PA, Tampa, FL, for Plaintiff.
Televised Visual X-Ography, Inc. Houston, TX, pro se.
Robert Augustus Burge C/O Tvx Home Video, Inc. Houston, TX, pro se.
John T. Jenkins, Jr., Law Office of John T. Jenkins, Jupiter, FL, Steve T. Skivington Law Office of Steve T. Skivington Las Vegas, NV, for Defendants.
The plaintiff seeks damages for copyright infringement, misappropriation of her image, defamation, and intentional infliction of emotional distress arising from the defendants' unauthorized use of herphotograph on the packaging of their pornographic movie DVD "Body Magic" (Doc. 121). The defendants failed to defend this case, and a default was entered against them. The well-pled complaint allegations establish her claims of direct copyright infringement, statutory misappropriation of image, and defamation by implication.
After the plaintiff filed a Motion for Default Final Judgment of Liability against Televised Visual X-Ography, Inc., and Robert Augustus Burge (Doc. 99), a non-jury trial was held to determine the amount of damages to which the plaintiff was entitled. Based upon the evidence adduced at the hearing, judgment will be entered for the plaintiff in the amount of $129,173.20.
On July 21, 2010, a non-jury trial on the plaintiff's damages was conducted. The plaintiff and her counsel appeared. The plaintiff offered exhibits into evidence, and she testified on her own behalf. No one appeared on behalf of the defendants. A summary of the relevant testimony and other evidence presented at trial follows.
Plaintiff Lara Jade Coton, who was 20 years old at the time of trial, is a professional photographer who was born and raised in England. She also currently resides there. Coton started her own company, Lara Jade Photography, in 2007, at age 17 ( see Pl.Ex. 1). Her photography has been featured in magazines, and she has been commissioned to photograph, among other things, products for retail sale ( see Pl. Exs. 2-7). Further, clients have paid the plaintiff licensing fees for the use of her self-portraits.
The photograph at issue in this case is a self-portrait of the plaintiff wearing a formal dress and top-hat while she posed in front of a window ( see Pl.Ex. 9). The plaintiff photographed this image of herself, one of her first self-portraits, at age 14, while vacationing with her family in England. The plaintiff described the picture as a girl playing dress-up.
The plaintiff placed the photograph, which she titled "No Easy Way Out," on a website named deviantART, which is an on-line artistic community where photographers receive feedback about, and sell, their photographs ( see Pl.Ex. 16). Through the deviantART website, millions of people have viewed the plaintiff's work, and she has profited thousands of dollars from selling copies of "No Easy Way Out" and other photographs ( see Pl. Exs. 10, 11).
In January 2007, when the plaintiff was 17 years old, the plaintiff learned that her "No Easy Way Out" photograph was being used without her permission to market a pornographic movie ( see Pl.Ex. 12). The plaintiff received through the deviantART message system an anonymous note alerting her to the use of her photograph. The message included an internet link to a website that revealed the plaintiff's photograph on the cover insert of the pornographic movie DVD "Body Magic" ( see Pl.Ex. 14). The plaintiff stated that, based on the movie's description, it was evident that it was pornography.
The plaintiff testified that she was shocked, disgusted, and ashamed when she saw the innocent image that she took of herself at age 14 associated with a pornographic movie. The plaintiff testified that no one sought her permission to use her photograph in this manner, and that, if asked, she would not have allowed it. Further, the plaintiff stated that she had no involvement with the Body Magic movie, or the adult movie industry in general.
The plaintiff immediately did a Google word search of Body Magic on the computer. The first website that appeared wastitled "Hustler," and she sent the company on January 29, 2007, an e-mail informing it that the image on the cover insert of the Body Magic DVD was a stolen photograph of herself at age 14 (Pl.Ex. 15). She stated that she was "absolutely disgusted that [they] used [her] artwork for such a subject" and that she "had no clue" that it was being used in such a way ( id.). She told Hustler to remove all of the DVDs until the movie cover was replaced ( id.). Hustler responded to the plaintiff that the company who produced Body Magic was TVX Home Video ( id.).
Consequently, the plaintiff went to the TVX website. The plaintiff stated that the TVX website was graphic, and it was apparent that they produce pornographic movies ( see Pl.Ex. 27). The plaintiff testified that she was ashamed of having to research this information and look at these websites.
The TVX website listed an e-mail address for "Bob @ tvxfilms.com" ( see id.). Defendant Robert Burge, TVX's president, received e-mails sent to this address (Pl.Ex. 46, pp. 16, 186). On January 29, 2007, the plaintiff sent an e-mail, similar to the e-mail she sent Hustler, stating that the photograph on the packaging of the Body Magic DVD is a stolen portrait of herself (Pl.Ex. 17). She included the website link to the original picture on deviantART ( id.). Additionally, she stated ( id.):
I am absolutely disgusted that you've used my artwork for such a subject—I was fourteen at the time when the picture was taken and I had no clue until today you were using it in such a way. You're also selling my picture to advertise your film. I want you to remove all of the DVDs out of shops/online etc until you replace the cover, otherwise I will have to press charges against you. My parents are disgusted with this too and will do all they can to help me with this case.
In response to her e-mail, Burge stated (Pl.Ex. 18):
The plaintiff testified that she was extremely upset when she learned that a couple hundred of these movies had been distributed because it would be harder to remove the images from circulation. She was also insulted by Burge's comment that her photograph was of "little importance."
On February 2, 2007, the plaintiff sent Burge two e-mails. One e-mail stated (Pl.Ex. 19):
I've been speaking to my solicitor and feel I should be compensated for the use of my photograph in this way, I also want a written confirmation that none of my images will be used again on your videos.
In the other e-mail ( id.), she requested Burge provide her with "the name of the company that provided you with the image with contact details if any (website, phone number, email etc)." Burge responded by e-mail that day, stating (Pl.Ex. 20):
Not only will you not be compensated for your photo we have turned this problem over to our attorney it seems the company my graphic company got the photo from on the internet is a public domain operation. You knew this when you originally sent us your scheming letter. Nice try toots. We are still going to remove you from the art, not because of your claim but let's face it your picture means very little to the film.
The plaintiff said that this response, which accused her of acting improperly, was threatening and scared her. She replied to Burge that (Pl.Ex. 21):
Burge then responded by e-mail that (Pl.Ex. 22, capitals and typographical errors in original):
On February 3, 2007, the plaintiff replied (Pl.Ex. 24) (typographical and grammar errors in original):
Burge responded, "You will have to talk to the graphic artist involved I have forwarded your request to him" (Pl.Ex. 25).
In this regard, Burge testified at his deposition that A.J. Cohen, from AJ. Cohen Studios, was hired to select the art for the Body Magic movie packaging ( see Pl.Ex. 31; Pl.Ex. 46, pp. 53,...
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