April 25, 2012
Misuse of Family Photograph by Photo Studio Supports Misappropriation Claim--Lee v. Picture People
[Post by Venkat Balasubramani]
Lee v. The Picture People, Inc., K10C-07-002 (RBY) (Del. Sup. Ct.; Mar. 19, 2012)
Privacy claims: The court denies summary judgment as to the child’s misappropriation claim. The basic elements of appropriation without consent were satisfied. Interestingly, there is no evidence that the daycare center actually utilized the images, and the court focuses on The Picture People’s allegedly improper “distribution” of the images. The court dismisses the child’s intrusion claim, finding that the child (through the parents) consented to be photographed. In any event, the court says that use of the pictures in this manner would not be offensive to the reasonable person. (??) The court also dismisses the false light claim, finding that there was nothing false about the use of the photos. Finally, the court grants summary judgment on the parents’ own tort claim, finding that they cannot directly assert the claims of their child (whose claims proceed anyway), nor could they assert a claim for emotional distress absent physical harm, or a showing that there were in the “zone of danger.” Bottom line: the child’s publicity-rights claims go forward, and the remaining claims, including the parents’ claims in their own right, are dismissed.
IIED claim: The court dismisses the intentional infliction of emotional distress claim, finding that (1) the conduct would not be viewed as outrageous by the reasonable person and (2) in any event, plaintiffs failed to satisfy the pleading requirements for emotional damages from torts (they did not suffer injury and were not in the “zone of danger”).
A reminder to parents: when you have photographs of your children taken, you may be called upon to negotiate agreements with personality and publicity rights provisions. The parents in this case smartly declined to sign the waiver, although the waiver probably would not have insulated The Picture People’s alleged conduct in this case.
[Eric's comment: Good grief, you can't even go to the mall anymore without fretting about IP rights.]