Citation Edit

Almeida v. Inc., 456 F.3d 1316 (11th. Cir. 2006) (full-text).

Factual Background Edit

In 1991, a fashion photographer requested to take photographs of the ten-year-old Plaintiff for an artistic photo exhibit. The Plaintiff’s mother consented to the photographs and the use of the photograph inside the first edition of Anjos Proibidos. However, in 2001, a second edition of Anjos Proibidos was published with the Plaintiff’s photograph on the cover. In 2002, Plaintiff discovered the photograph on the cover of the second edition book on Amazon.

Trial Court Proceedings Edit

The Plaintiff file suit under the Fla. Stat. §540.08 (Publicity), Fla. Stat. §772.11 (civil theft), and common law privacy. However, because Section 230 of the Communications Decency Act preempts conflicting state law claims the District Court granted sua sponte the Defendant’s motion for summary judgment on the Plaintiff’s claims. Additionally, the District Court concluded that if the CDA did not preempt the Plaintiff’s claims, the suit was barred by Fla. Stat. 540.08(3)(b).

Court of Appeal Proceedings Edit

On appeal, the Plaintiff argued that the CDA should not preempt her state law claims because: (1) the court raised the CDA preemption sua sponte when Amazon should have brought the argument before the court; (2) right of publicity is an intellectual property right and the CDA does not apply to intellectual property claims; and (3) Amazon is an “information content provider.”

The central issue before the appellate court was whether the CDA preempted the Plaintiff’s state law claims. The Court of Appeals affirmed the District Court’s decision, holding the Plaintiff’s right of publicity claim was dismissed under Florida state law and not under the Federal CDA. However, The Court of Appeals dismisses the publicity claim under Fla. Stat. §540.08 and not under the District Court’s Fla. Stat. §540.08(3)(b) exception.

Right of Publicity Claim under the CDA Edit

The majority of the opinion is centered around the Court of Appeal’s acceptance of the Plaintiff’s argument that 47 U.S.C. §230(e)(2) (stating, that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property) of the CDA should have been addressed before the District Court’s ruling on the right of publicity claim. The Court of Appeals reasoned, the District Court erred because the inquiry of “whether the CDA immunizes an interactive service provider from a state law right of publicity claim is an issue of first impression for this court.” Moreover, the Court agreed with the Plaintiff that although right of publicity is not one of the traditional forms of intellectual property, it is widely recognized as an intellectual property right. However, neither party submitted compelling evidence showing the legislative intent on whether traditional or widely accepted intellectual property rights should apply. The Court found no reason to address a novel issue regarding intellectual property. But opined that Section 230(e)(2) of the CDA should have been addressed by the District Court.

Right of Publicity Claim under Fla. Stat. §540.08 Edit

The Court of Appeals addressed the Plaintiff’s right of publicity claim under Fla. Stat. §540.08. The Court relied on the precedent of Gucci v. Hall & Associates,[1] which held "that a federal trademark claim against a service provider must turn on whether Plaintiffs’ Complaint successfully states a claim for violation of the trademark laws without regard to the CDA”. Applying Gucci to the instant case, the Court addresses the Plaintiff’s right of publicity claim under Fla. Stat. §540.08 and not under the federal CDA legislation. Furthermore, the Court of Appeals concludes that the District Court’s holding that Fla. Stat., §540.08(3)(b) bars the Plaintiff’s claim did not apply to the facts of the present case.

In pertinent part Section 540.08(3)(b) states:

No person shall publish, print, display, or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without express written or oral consent of such use. . . .

Applying Section 540.08 to the facts, the Court reasoned, because Amazon is similar to a traditional bookstore that allows customer to browse book covers and descriptions, Amazon did not “directly promote” the Plaintiff’s cover picture to sell the book. Additionally, the Court reasoned that displaying book covers are “incidental and customary” in performing Internet book sales. Thus, “it is clear from [Plaintiff’s] complaint that Amazon did not use [Plaintiff’s] image for trade, commercial, or advertising purposes as those terms are used in the statue.” As a result, since there was no proof that Amazon violated Section 540.08, the motion for summary judgment was affirmed.

Civil Theft Edit

For the Plaintiff to recover under a civil theft claim, it must be proven that Amazon “knowingly obtained or used, it endeavored to obtain or to use,” [plaintiff’s] property with the felonious intent to appropriate the property to [Amazon’s] own use or to the use of any person not entitled to the use of the property.” The Court reasoned, because there was no evidence that Amazon used the Plaintiff’s photograph with actual knowledge that its use was unauthorized, there was no proof of Amazon’s felonious intent to misappropriate the Plaintiff’s photograph.

References Edit

  1. 135 F.Supp.2d 409, 60 U.S.P.Q.2d (BNA) 1714 (S.D.N.Y. 2001)(full-text).

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