On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1389-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Gilroy.
Plaintiff Virginia Jeffries, individually, and as the mother of Renee Jeffries (a minor), appeals from that part of the November 17, 2008 order that granted summary judgment to defendant Whitney E. Houston Academy P.T.A. (the PTA). We affirm.
On February 14, 2007, plaintiff filed a complaint against the defendants, PTA; the East Orange Board of Education (EOBOE); and Terrance Harris, alleging that defendants had invaded her daughter's right to privacy by appropriating her likeness for their commercial benefit. On September 25, 2008, the PTA and EOBOE filed a motion for summary judgment. On November 17, 2008, the trial court entered an order, supported by an oral decision of October 24, 2008, granting the motion.*fn1
The Whitney E. Houston Academy (Academy) is an elementary school for the performing arts operated and maintained by the EOBOE for students in grades kindergarten through eight. The PTA is an "organization . . . organized exclusively for the charitable, scientific, literary, or educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code .
The stated purposes of the PTA include "promot[ing] the welfare of children and youth in home, school, community, and place of worship"; "bring[ing] into closer relation the home and the school, that parents and teachers may cooperate intelligently in the education of children and youth"; and "develop[ing] between educators and the general public united efforts as will secure for all children and youth the highest advantages in physical, mental, social, and spiritual education." Renee attended the Academy from the first grade through the eighth grade, and consistent with the Academy's program requirements, frequently participated in school productions.*fn2
At the beginning of each school year, the parents executed and submitted forms to the Academy, consenting to the EOBOE's videotaping, photographing or sound recording of their children "in classroom, playground, auditorium activities and productions." The form provided in part that "[t]his consent is given with the knowledge that these might appear in the media or be used in conjunction with exhibits, publicity and public relations." Plaintiff submitted the required consent form for the 2005-2006 school year. The Academy's staff also frequently videotaped performances throughout the year, and teachers used those videotapes as instructional tools to help students evaluate themselves.
On March 9, 2006, Renee performed in a play presented by the PTA called, "Cinderella with a Twist." Although the play was produced by the Academy and the EOBOE, any admission fees charged at this and other school performances were collected by the PTA and deposited into an account for the purpose of funding student activities.
One week before the performance, plaintiff saw a flier for the play indicating that the production would be videotaped. Plaintiff approached the Academy's principal, inquiring about the videographers identified on the flier. Although plaintiff was referred to the teacher directing the play, plaintiff did not pursue her inquiry any further with either the teacher or the principal.
Approximately seventy to eighty students participated in the play's performance; approximately 350 non-students attended the play. Renee appeared in a non-speaking role with a group of dancers. The play lasted approximately an hour; and Renee appeared on stage intermittently throughout the performance for approximately twenty minutes.
On the night of the play, an announcement was made that individuals could purchase copies of the videotape through the PTA. When Renee heard that the recording would be available for sale she "didn't really care at the time." Neither plaintiff nor ...