Let’s start my guest-blogging with a softball, lobbed right here in my own backyard of New York City:
A woman has filed a lawsuit against a pet cremation service and a photo agency, claiming they used a photo of her posing with her dogs, Chickie and Tiny, without her permission.
Cecala, whose lawsuit seeks $3 million, said she never gave permission to have the photo used for “something of such a morbid nature[.]”
Where to begin?
Put aside any contractual issues — it doesn’t appear that Ms. Cecala was even a party to a contract — and breach of contract doesn’t allow for punitive damages anyway.
At common law there is indeed a privacy tort called “misappropriation” — see Restatement of Torts (Second), §652C.
One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy.
The problem of course is that the tort of misappropriation is generally intended to apply to celebrities — to prevent people from attempting to “free ride” the value of an already valuable name or likeness. The name or likeness of a private person such as Ms. Cecala has no commercial value — hence there is nothing to misappropriate.
And, of course, the idea that such an act, even if somehow tortious, is worth $3 million is preposterous. I’d love to see the breakdown of compensatories and punitives in the complaint.
The mere taking of a person’s photograph (especially with their consent) is not, without more, an invasion of privacy. Which means it also not a lawsuit. And certainly not a $3 million lawsuit.
Let’s hope for a prompt dismissal.