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)

Plaintiffs had their two year old’s picture taken at The Picture People, a store engaged in the business of family photography. At checkout, the photographer asked plaintiffs if they would consent to use of one of the pictures in a contest the photographer intended to enter. Plaintiffs said no, and declined to execute the consent form that they were presented with. Although this was an in-person transaction, The Picture People’s website had a privacy policy that said The Picture People would keep any information provided by customers in connection with their use of online services secure. About a year later, plaintiffs discovered that The Picture People provided one of the pictures to their child’s day car center for advertising purposes. After plaintiffs complained, The Picture People confirmed that it did not obtain consent to use the picture and advised that it would erase all of the images from its system. Plaintiffs brought suit, alleging a potpourri of claims, on their own behalf as well as on behalf of their child. The Picture People moved for summary judgment on all claims.

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”).

Warranty claims: The court dismisses plaintiffs’ warranty claims. With respect to express warranties, the court finds that any statements on The Picture People website and in its privacy policy did not relate to the “goods” in question. The court also finds that there is no breach of implied warranties because the implied warranties, if any, relate to the quality of the products (the photographs) and do not impose a warranty regarding the use or misuse of the photographs. Plaintiffs also sought to tack on a breach of the duty of good faith but the court says this does not support an independent cause of action. Plaintiffs’ claims sound more in tort than in contract so the warranty claims fail. The court also dismisses plaintiffs’ claims under Delaware consumer fraud act and a statute that prohibits the knowing or reckless distortion of the terms of a contract. The court says that there is no evidence that The Picture People engaged in any sort of deception, or attempted to obscure or distort the terms of a consumer contract. The Picture People may have misused the photograph, but it didn’t make any representation to plaintiffs otherwise (i.e., there was no deception involved). Neither the privacy policy (which clearly did not speak to use of the photograph) nor the request that plaintiffs sign a consent form turned The Picture People’s alleged misuse of the photograph into a fraudulent or misleading act.


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.]

Plaintiffs made a valiant effort to rope in The Picture People’s privacy policy to bolster their contract and warranty causes of action, but this ended up being a bust. In the online ad-tracking and the Facebook cases, the applicable privacy policies end up being relevant because they arguably covered the information collection and use in question; they may also provide the basis for consent. Neither was the case here. Nevertheless, it’s interesting to see this lawsuit play out similarly to other privacy lawsuits. Publicity rights violations seem to be the most viable cause of action. (See, for example, Fraley v. Facebook, discussed in Eric’s blog post here: “Facebook “Sponsored Stories” Publicity Rights Lawsuit Survives Motion to Dismiss–Fraley v. Facebook.”) Here, if the evidence ultimately shows that the daycare center never actually used images the question, plaintiffs’ claims will get kicked. The remaining causes of action are fairly anemic at best, and in this case ended up being dismissed altogether.