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holding that delictual fraud claim could be based on unfulfilled promise that was made with the intent not to perform, and rejecting argument that promise made with intent not to perform could only be basis of fraud claim under Article 1953
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Civil Action No. 03-0556 Section: "D" (1).
June 23, 2004
Before the court are the parties' respective briefs regarding Plaintiffs' claim for economic damages. Having reviewed the memoranda of counsel and the applicable law, the court now rules.
On March 10, 2004, the court summarily dismissed the Plaintiffs' claims for unjust enrichment against all Defendants because Plaintiffs offered no evidentiary basis to show that Defendants were enriched (an essential element of an unjust enrichment claim). ( See Minute Entry, Doc. No. 127, pp. 6-7, 12).
The elements of an unjust enrichment claim: (1) there must be an enrichment; (2) there must be an impoverishment; (3) there must be a connection between the enrichment and the impoverishment; (3) there must be an absence of "justification" or "cause" for the enrichment or the impoverishment; and (5) there must be no other remedy available to the plaintiff. Carriere v. Bank of Louisiana, 702 So.2d 648, 671 (La. 1996).
Plaintiffs now argue that despite the dismissal of the unjust enrichment claim, they are still entitled to economic damages and/or a "reasonable royalty" under their misappropriation claim. (Plaintiffs' Memo, Doc. No. 138, pp. 1-4). At the outset, the court finds that Plaintiffs' claim for misappropriation is encompassed within their invasion of privacy claims against Defendants Joseph Francis and Mantra Films.
In Louisiana, the right of privacy may be invaded in four distinct ways: (1) by appropriating an individual's name or likeness for use or benefit by the defendant; (2) by unreasonably intruding on a person's physical solitude or seclusion; (3) by publicity that places a person in a false light before the public; and (4) by unreasonable disclosure of embarrassing private facts. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1388 (La. 1979); Shariff v. American Broadcasting Co., 613 So.2d 768, 770 (La.App. 4th Cir. 1993); Slocum v. Sears Roebuck Co., 542 So.2d 777, 778 (La.App. 3rd Cir. 1989).
In this case, Plaintiffs have not explicitly pled a "right to publicity" claim, which other jurisdictions have recognized as a "special branch" or "fifth" version of the right to privacy. See; Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003); PETA v. Bobby Bersoni, Ltd, 895 P.2d 1269, 1278 (Nev. 1995) (improperly cited by Defendants Broadus Snoopadelic Pictures as 867 P.2d 1121, as that opinion was withdrawn on a technicality and grant of rehearing by the court in 894 P.2d 337); Stephano v. News Group Publications, Inc., 64 N.Y.2d 174, 183, 485 N.Y.S.2d 220, 474 N.E.2d 580 (1984). Louisiana courts have neither explicitly adopted nor precluded this right, but one court suggested the possible adoption of such a right in Paul Prudhomme's case involving a look-alike in a coffee commercial. Prudhomme v. Proctor Gamble Co., 800 F. Supp. 390, 395-96 (E.D.La. 1992) (Sear, J.).
Nevertheless, the elements of the two torts of misappropriation and right to publicity are essentially the same and cases analyzing the tort of misappropriation are pertinent to analyzing a right to publicity claim. TCI Cablevision, 110 S.W.3d at 368-69.
Under the facts of this case, the court concludes that whether Plaintiffs' claim for invasion of privacy is considered as a misappropriation claim or right to publicity claim or a hybrid of the two, the Plaintiffs would have to prove the same elements and they would be entitled to the same types of damages. See e.g., Elder, David A., Privacy Torts, § 6.1 "The Appropriation-Publicity Tort-In General" § 6.14 "Damages".
The court previously dismissed Plaintiffs' invasion of privacy claims against Defendants Calvin Broadus (Snoop Dogg) and Snoopadelic Pictures, but maintained these claims against Defendants Joseph Francis and Mantra Films. ( See Minute Entry, Doc. No. 127, pp. 5-6, 9-10).
Under the Restatement (Second) of Torts,
One who appropriates to his own use or benefit or likeness of another is subject to liability to the other for invasion of his privacy.
Comment:
a. The interest protected by the rule stated in this Section is the interest of the individual in the exclusive use of his own identity, in so far as it is presented by his name or likeness, and in so far as the use may be of benefit to him or to others. Although the protection of his personal feelings against mental distress is an important factor leading to a recognition of the rule, the right created by it is in the nature of a property right, for the exercise of which an exclusive license may be given to a third person, which will entitle the licensee to maintain an action to protect it.Restatement § 652C Comment (a). (emphasis added)
To prove a cause of action for misappropriation, the plaintiff must demonstrate that her identity has been appropriated by the defendant for some advantage, usually of a commercial nature, to the defendant. Moore v. Big Picture Co., 828 F.2d 270, 275 (5th Cir. 1987). However, the plaintiff is not required to show that the defendant made money from the commercial use of the plaintiff's name or likeness. Brown v. Ames, 201 F.3d 654, 661-62 (5th Cir. 2000). Further, the plaintiff is not required to prove a monetary loss. Zim v. Western Pub. Co, 573 F.2d 1318, 1327 n. 19 (5th Cir. 1978).
As for the type of damages recoverable under a misappropriation claim, the Restatement (Second) of Torts provides:
One who has established a cause of action for invasion of privacy is entitled to recover damages for
(a) the harm to his interest in privacy resulting from the invasion;
(b) his mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and
(c) special damage of which the invasion is a legal cause.Restatement (Second) of Torts, § 652H (1977).
Louisiana's jurisprudence has rooted its analysis of invasion of privacy claims with the Restatement (Second) of Torts. See e.g., Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1388 (La. 1979), citing Restatement Second of the Law of Torts (1959). However, there is an absence of Louisiana case law specifically discussing economic damages in a misappropriation case. Thus, for guidance in this case, the court looks to the Restatement (Second) of Torts, § 652H and other state law cases which discuss the Restatement in deciding economic damages in a misappropriation case. See e.g., Moore v. The Big Picture Co., 828 F.2d 270, 276 (5th Cir. 1987).
In Moore, the court explained that "[f]or invasion of privacy through misappropriation, a plaintiff may recover general damages plus any special damages which are proven." Moore, 828 F.2d at 277 (citation omitted). And "[g]eneral damages are those which naturally, proximately, and necessarily result from the improper communications." Id.; Brown v. Ames, 201 F.3d 654, 662 (5th Cir. 2000).
Comment (a) to the Restatement § 652H, provides that: "One whose name, likeness or identity is appropriated to the use of another, under § 652C, may recover for the loss of the exclusive use of the value so appropriated. Restatement (Second) of Torts, § 652H (1977) (comment (a)) (emphasis added).
Here, Plaintiffs contend that their "images were placed on the cover of the subject video and used in television, print and internet advertising" and "[t]his appropriation cost [them] the opportunity for compensation for their non-consensual appearance and provided the defendants an advertisement featuring the two plaintiffs without having to compensate the girls for their appearance on the cover." ( Id. at 4). So what type of damages are Plaintiffs entitled to?
One commentator explains that:
The distinct majority of case law treats the privacy-appropriation tort-publicity as having hybrid characteristics for damage purposes. Although much of the case law, including many important early decisions, emphasized the "laceration to feelings" aspect, modern law has tended to focus more on the publicity aspect, particularly when public personages are involved. But the modern cases have also generally rejected any attempt to create an iron-clad dichotomy between the two and damages for both aspects have regularly been awarded and authorized in the same proceeding.
Elder, David A., Privacy Torts, § 6.14 "Damages." (emphasis added)
The court concludes that if the Plaintiffs prove that Defendants misappropriated their likeness, they would be entitled to emotional damages, as well as the reasonable market value of the use of the Plaintiffs' identity or persona in the commercial setting in which Defendants have used it. See McCarthy, J. Thomas, The Rights of Publicity and Privacy, § 11:32-Recovering the Fair Market Value of Identity. But how do Plaintiffs prove such a reasonable market value?
Plaintiffs may recover damages for emotional distress or personal humiliation that they prove to have been actually suffered by them, if they are of a kind that normally result from such an invasion of privacy and are normal and reasonable in their extent. Restatement, § 652H (Comment b); see also St. Julien v. So. Cental Bell Tel. Co., 433 So.2d 847, 853 (La.App. 3rd Cir. 1983) (mental anguish and embarrassment caused by the intentional violation of property rights are allowed even if the violation causes no pecuniary damages); Hamilton v. Lumbermen's Mutual Cas. Co., 82 So.2d 61, 66-67 (La.App. 1st Cir. 1955).
However, "Louisiana unlike common law does not award nominal damages for the mere invasion of a right, no actual damages having resulted." Slocum v. Sears, Roebuck Co, 542 So.2d 777, 779 (La.App. 3rd Cir. 1989) ( quoting Louisiana Civil Law Treatsie, Vol. 12, Tort Doctrine, (1977) at pp. 22-23. In Slocum, the appeal court affirmed the trial court's finding that a limited use of a child's picture was a technical violation but not a significant interference with the child's privacy interests. Slocum, 542 So.2d at 779.
While "one's name and likeness is an intangible property interest which is not susceptible of proof with mathematical exactitude," recovery is not allowed for damages that are speculative or conjectural. Brown, 201 F.3d at 662 (citation omitted). In other words, "the plaintiff does not have to give an actual dollar value to [her] injury," but her damages must be "ascertainable by reference to some fairly definite standard, established experience, or direct inference from known facts." Id.
King v. Ames, 179 F.3d 370, 377 (5th Cir. 1999), quoting Zim v. W. Publ'g Co., 573 F.2d 1318, 1327 n. 19 (5th Cir. 1978).
In Brown, the plaintiff blues musicians sued a music distributer for, inter alia, misappropriation of their names and likenesses when the plaintiff musicians' names and likenesses were included on cassettes, CD's, and music catalogs, that were manufactured and distributed by the defendant music distributer. The jury awarded the plaintiffs $27,000, for misappropriation, and the defendant appealed this award, arguing that the plaintiffs did not present legally sufficient evidence to support it. Applying Texas law and the Restatement (Second) of Torts § 652C, the Fifth Circuit rejected this argument concluding that: the jury could reasonably have based its estimate of the damages suffered by plaintiffs and even the value of [their] names and/or likenesses on inferences from the amounts [plaintiffs] were paid to perform at blues festivals. Brown, 201 F.3d at 662.
For other cases in which damages were found to be "ascertainable by reference to some fairly definite standard, established experience, or direct inference from known facts," see King v. Ames, 179 F.3d 370, 376-77 (5th Cir. 1999); Ventura v. Titan Sports, Inc, 65 F.3d 725 (8th Cir. 1995); and Moore v. The Big Picture Show, 828 F.2d 270, 275-77 (5th Cir. 1987).
In King, the opinion testimony of a musician's daughter was sufficient to establish the value of damages resulting from the defendant music producer's misappropriation of her father's name and likeness because the daughter had engaged in some limited transactions involving the marketing of her father's name and likeness. King v. Ames, 179 F.3d 370, 376-77 (5th Cir. 1999).
In Ventura, the testimony of Plaintiff's damages expert was relevant and reliable in determining market value of plaintiff wrestler's videotape license. Ventura v. Titan Sports, Inc, 65 F.3d 725 (8th Cir. 1995).
In Moore, a former employee of an audio-visual company sued a competitor, alleging, inter alia, misappropriation of name. The jury found for the plaintiff and the district court denied the defendant's motion for judgment notwithstanding the verdict. The Fifth Circuit affirmed and found that based on the testimony of witnesses in the audio-visual industry, there was sufficient evidence to support the jury's finding that Plaintiff's name had value and the use of the name was to defendant's advantage. Further, the Plaintiff testified that he was unable to find other employment in the audio-visual industry, and the Fifth Circuit affirmed the jury's award of lost earnings. Moore v. The Big Picture Show, 828 F.2d 270, 275-77 (5th Cir. 1987).
On the other hand, in a case where the plaintiff author sued a publisher for unauthorized and wrongful appropriation of the author's name, the Fifth Circuit found that the plaintiff did not prove that he was entitled to compensation for the deprivation of the right to control the use of a commercially valuable asset, his name, because the only evidence going to the question of damages was plaintiff's own statement as to the amount he had been damaged by the subject publication and "[t]hat statement, self-serving and conclusory in character, made no attempt to segregate the particular value attached to the use of the [plaintiff's] name." Zim v. Western Pub. Co., 573 F.2d 1318, 1327, n. 19 (5th Cir. 1978).
One commentator opines:
For "celebrities," such a market value can be ascertained relatively easily by expert testimony as to "comparables": amounts received by comparable persons for comparable uses. An expert is permitted to testify as to his opinion about the fair market licensing value of plaintiff's identity for the kind of usage made by defendant. Even for "noncelebrities," there exists a marketplace for the use of the identity of ordinary people in advertising.Id. (emphasis added).
The commentator notes:
For example, noncelebrities are sometimes paid actor's equity rates of about $350 a day plus residuals that vary depending upon where and how often a television ad appears. The firm of People Finders in New York specializes in finding credible amateurs for advertising. Itow, Finding Real People, San Francisco Examiner, C 1, November 7, 1984. See Treece, Commercial Exploitation of Names, Likenesses, and Personal Histories, 51 Tex. L.Rev. 637, 649 (1973) ("Restitution for an advertising use thus appears to be available to noncelebrities when the advertiser would have had to pay a professional to get a picture with the appeal of the one appropriated.").See McCarthy, J. Thomas, The Rights of Publicity and Privacy, § 11:32-Recovering the Fair Market Value of Identity, at n. 4.
Here, Plaintiffs, who are noncelebrities with no prior experience in marketing their likenesses, argue that:
no negotiated amount would have sufficed for their consensual appearance on the cover of defendant FRANCIS and MANTRA'S video product. Naturally, defendant FRANCIS and MANTRA will assert that they would have offered little or no consideration for the plaintiffs' consensual appearance. At this point it is prudent to apply the laws applicable to appropriation of patent, trademark, copyright, and image and likeness in the Gritzke and Brown cases to determine a reasonable royalty.
Given the difference of opinion between the current parties, a look to the contract between MANTRA and SNOOPADELIC clearly illustrates the going rate or established royalty MANTRA paid or agreed to pay for an appearance on the cover of the subject video in marketing and promotion.
Pursuant to the contract between Defendants Mantra and Snoopadelic, Defendant Broadus (Snoop Dogg) was to receive a royalty in the amount of one dollar per video sold. ( See Plaintiff's Exhibit 3, Contract between Mantra and Snoopadelic). However, in their memorandum, Snoop Dogg and Snoopadelic state that neither one of them "owns any right to the video and or receives any royalties from the video's sale." ( See Memo. of Snoop Dogg * Snoopadelic, p. 4).
Plaintiffs also assert (and Defendants do not contest) that Snoop Dogg received two $100,000 checks for his appearance on he subject video. (Plaintiffs' Memo. at 5 Plaintiffs' Exhibit 2, copies of checks issued to Snoopadelic Pictures).
The court finds that an award based on a "reasonable royalty" for its use of Plaintiffs' identity has some appeal. However, Plaintiffs have named no expert who will offer expert testimony regrading what a "reasonable royalty," "going rate," or commercial licensing value of Plaintiffs' non-celebrity persona would have been if Plaintiffs had been willing to pose for the cover of the subject video. ( See Plaintiffs' Witness and Exhibit List, Doc. No. 114, filed on February 13, 2004).
Florida has a statute that explicitly provides for recovery of any loss or injury sustained by the unauthorized publication of name or likeness, "including an amount which would have been a reasonable royalty." Fla.Stat. § 540.08(2)
The Final Pre-Trial Conference is scheduled on Wednesday, July 21, 2004, and the Trial is scheduled the week of August 16, 2004. Accordingly, cut-off dates for expert reports, and witness lists have long passed and will not be extended.
Without such expert testimony, the court concludes that it would be too speculative to allow the jury to determine the marketplace value of the use of Plaintiffs' picture on the cover of the subject video. If the jury was allowed to only consider the contract between Mantra and Snoopadelic, with its provision that Snoop Dogg would be paid one dollar for every video sold, and/or the number of videos sold or distributed, the jury would simply not have an adequate comparable to make reasonable assumptions. Snoop Dogg is allegedly a noted celebrity, i.e., allegedly a world-famous rap star and actor, who not only appeared on the cover of the subject video with the Plaintiffs, but he also lent his name to the video's title and he hosted the video. In contrast, Plaintiffs are non-celebrities with no prior experience in marketing their likeness, and it is undisputed that the use of Plaintiffs' likenesses is limited to the cover of the subject video.
Finally, Plaintiffs also argue that they are entitled to economic damages resulting from "detrimental reliance" on Defendants' alleged "fraudulent promises." (Plaintiffs' Memo. at 5-7). To the extent that Plaintiffs are arguing that, under their fraud/misrepresentation claims, they are entitled to economic damages similar to a royalty, lost profit or opportunity, the court rejects Plaintiffs' argument for the same reasons that they are not entitled to such economic damages under their misappropriation claim. That is, without expert testimony, Plaintiffs cannot prove such damages. Compare, JCM Construction Co. v. Orleans Parish School Board, 860 So.2d 610, (La.App. 4th Cir. 2003) (on claims for negligent misrepresentation, detrimental reliance and malicious prosecution, testimony of plaintiff contractor's expert economic analyst was sufficient to establish that contractor had suffered economic loss).
While Plaintiffs refer to their claim as one for "detrimental reliance," they have never pled such a claim and are presumably referring to their claims for fraud/misrepresentation. However, causes of action for both fraud or misrepresentation have elements of "reliance."
As the court previously noted in an earlier Minute Entry, under Louisiana law, the elements of a delictual fraud or intentional misrepresentation claim are: (1) a misrepresentation of a material fact, (2) made with the intent to deceive, and (3) causing justifiable reliance with resultant injury. Guidry v. United States Tobacco, 188 F.3d 619, 627 (5th Cir. 1999). ( See Doc. No. 129, p. 10, n. 14).
And the elements of a negligent misrepresentation claim are: (1) a legal duty on the part of defendant to supply correct information; (2) a breach of that duty; and (3) damages to the plaintiff as a result of her justifiable reliance on the misrepresentation. Brown v. Forest Oil Corp., 29 F.3d 966, 969 (5th Cir. 1994). ( Id.).
In previous rulings on the Defendants' Motions for Summary Judgment, the court maintained the Plaintiffs' fraud/misrepresentation claims against Defendants Joseph Francis and Mantra Films, as well as Intervenor-Plaintiff Whitni Candiotto's misrepresentation claim against Defendants Snoop Dogg and Snoopadelic Pictures, Inc. (Doc. No. 127). However, the court dismissed Plaintiff Jaime Capdeboscq's misrepresentation claims against Defendants Snoop Dogg and Snoopadelic Pictures, Inc. (Doc. No. 131).
However, even without expert testimony, "an article 2315 tort, negligent misrepresentation [may entitle] a successful plaintiff to an award of damages for mental anguish, pain and suffering." JCM Construction Co., 860 So.2d at 644.
Accordingly;
IT IS ORDERED that because there will be no expert testimony, Plaintiffs will not be allowed to seek economic damages (in the form of royalties, lost profit or opportunity) from the jury.