Whisper Wear, Inc. v. Morgan

• Decision Date: 14 February 2006
• Docket Number: No. A06A0272.,A06A0272.
• Parties: WHISPER WEAR, INC. v. MORGAN.
• Court: Georgia Court of Appeals

277 Ga. App. 607

Page 178

627 S.E.2d 178

WHISPER WEAR, INC. v. MORGAN.

No. A06A0272.

Court of Appeals of Georgia.

February 14, 2006.

Isenberg & Hewitt, Ryan L. Isenberg, Atlanta, for appellant.

Adam S. Jaffe, Lynley R. Rothstein, Atlanta, for appellee.

JOHNSON, Presiding Judge.

Whisper Wear, Inc. is a breast pump manufacturer. Whisper Wear hired James Chatwin to obtain photographs of a model for use in its marketing campaign. The breast pump manufacturer instructed Chatwin to hire a model who would not seek usage fees, assumed Chatwin would take care of the necessary releases, and assumed it would get "full, exclusive, unrestrained use" of the photographs it purchased. Chatwin contacted Arlene Wilson Management ("AWM"), a model and talent agency. AWM provided Tiffany Morgan, a professional model.

On the day of the photo shoot, Morgan brought a voucher with her. A voucher is a contract, release and invoice signed by the model and the client. Chatwin and Morgan signed the voucher, and Morgan signed a separate general release given to her by Chatwin. The voucher stated that Chatwin would pay $100 for the photographs of Morgan. It specified that the use of the photographs for billboards, national advertising, the internet, and a few other areas had to be pre-negotiated with AWM. The voucher stated in capital letters as follows:

THIS RELEASE TAKES PRECEDENCE OVER ANY OTHER RELEASE SIGNED AT THE TIME OF THE JOB WITH THE EXCEPTION OF CONTRACTS AND AGENCY RELEASES THAT CONTAIN ONLY THE SAME INFORMATION HEREIN.

The separate release signed by Morgan gave Chatwin "the irrevocable right to use [Morgan's] name (or any fictional name) picture, portrait, or photograph in all forms and in all media and in all manners . . . for advertising, trade, promotion, exhibition, or any other lawful purposes." The release further provided: "I agree that [Chatwin] owns the copyright in these photographs and I hereby waive any claims I may have based on any usage of the photographs . . . including but not limited to claims for either invasion of privacy or libel." Whisper Wear subsequently paid Chatwin for the photographs and was under the impression that it had purchased the right to use the photographs in its marketing. However, it is undisputed that Whisper Wear used the photographs in a manner that was not authorized under the voucher signed by Chatwin and Morgan.

On November 25, 2002, Morgan, through AWM, contacted Chatwin regarding improper use of the photographs taken on November 14, 2002. According to AWM, Chatwin informed the company that the photographs would not be used by Whisper Wear or any other client. He told AWM that the pictures would be destroyed and Whisper Wear would be hiring another model for the photographs. Chatwin contacted Whisper Wear, but told the company not to worry about the problem.

The photographs were used by Whisper Wear in national advertising campaigns, including internet ads on the Whisper Wear homepage and advertisements which ran in nationally circulated magazines. Whisper Wear claims it did not receive notice of any problem with the photographs until May 29, 2003, and even then there was no demand that it stop using the photographs. On May 29, 2003, AWM contacted Whisper Wear regarding the improper use of the photographs. A Whisper Wear agent stated the advertisements were already placed, and the advertisements continued to run until Morgan filed a lawsuit against Whisper Wear and Chatwin. The lawsuit alleged breach of contract, fraud, rescission and misappropriation. Chatwin and Morgan settled.

The case proceeded to trial solely on the claim of misappropriation against Whisper Wear. The jury awarded Morgan $25,000 for misappropriation and $10,000 in attorney fees. The trial court directed a verdict for Whisper Wear on the attorney fees, finding that the record demonstrated a bona fide controversy, but denied Whisper Wear's motion for directed verdict, motion for judgment notwithstanding the verdict, and motion for new trial on the misappropriation claim. Whisper Wear appeals the trial court's denial of its motions. We find no error and affirm the trial court's denial of Whisper Wear's motions.

The standards for granting a directed verdict or j.n.o.v. are identical: there must be no conflict in the evidence as to any material issue such that the evidence, with all reasonable deductions therefrom, demands a particular verdict.¹ If the evidence is conflicting, or if insufficient evidence exists to make a "one-way" verdict proper, a directed verdict or j.n.o.v. should not be granted.² Moreover, we must review and resolve the evidence and any doubts or ambiguities in favor of the verdict.³ Clearly, the case before us involves conflicting evidence of competing forms: the voucher and the release. Whisper Wear contends that Morgan's sole remedy is against Chatwin for breach of contract. Whisper Wear further contends that the release supersedes the voucher, despite specific language to the contrary in the voucher. Both contentions lack merit.

1. Whisper Wear argues that the trial court erred in failing to grant its motion for a directed verdict or j.n.o.v. because, as a matter of law, Morgan transferred her rights to Chatwin. According to Whisper Wear, any claims involving a breach of the contract between Chatwin and Morgan can be remedied by action solely against Chatwin. While this argument may be true if the case before us was a case for breach of contract, it is undisputed that Chatwin and Morgan settled the breach of contract claim prior to trial and that the case before us proceeded to trial solely on the misappropriation claim against Whisper Wear.

Morgan claims Whisper Wear violated her right to privacy by misappropriating her likeness. This Court has recognized that the appropriation of another's identity, picture, papers, name or signature without consent and for financial gain is a tort for which an action lies on the theory that it constitutes an invasion of a property right, or an invasion of privacy.⁴ Thus, contrary to Whisper Wear's argument, Morgan filed a valid claim against Whisper Wear. It was Whisper Wear's duty to ascertain what rights the company possessed with regard to Morgan's photographs. If Whisper Wear was mislead by Chatwin, then Whisper Wear may have a cause of action against Chatwin, but that cause of action does not affect Morgan's right to sue Whisper Wear for misappropriating her likeness.

This Court will not disturb a verdict when there is any evidence in the record to sustain it, or where...