Rejection of Argument by Court As Image and Likeness Not Used to Promote a Product or Service
In Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002), the Middle District of Florida considered whether section 540.08 was violated by the defendants' display of the plaintiff exposing her breasts in a "Girls Gone Wild" video.
The plaintiff had consented to being videotaped but was unaware that the video would be sold to the public.
The federal court rejected the plaintiff's section 540.08 argument, reasoning as follows:
Under Fla. Stat. 540.08, the terms "trade," "commercial," or "advertising purpose" mean using a person's name or likeness to directly promote a product or service.
As a matter of law, this Court finds that Lane's image and likeness were not used to promote a product or service.
In coming to this conclusion, this Court relies on section 47 of the Restatement (Third) of Unfair Competition which defines "the purposes of trade" as follows:
The names, likeness, and other indicia of a person's identity are used "for the purposes of trade" . . . if they are used in advertising the user's goods or services, or are placed on merchandise marketed by the user, or are used in connection with services rendered by the user.
However, use "for the purpose of trade" does not ordinarily include the use of a person's identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising incidental to such uses.
Therefore, under this definition, the "use of another's identity in a novel, play, or motion picture is . . . not ordinarily an infringement . . . unless the name or likeness is used solely to attract attention to a work that is not related to the identified person." Id. at comment c.