July 20, 2009
VIRGINIA JEFFRIES, INDIVIDUALLY AND AS NATURAL MOTHER OF RENEE JEFFRIES, A MINOR, PLAINTIFF-APPELLANT,
WHITNEY E. HOUSTON ACADEMY P.T.A., DEFENDANT-RESPONDENT, AND EAST ORANGE BOARD OF EDUCATION, AND TERRANCE HARRIS, DEFENDANTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 2, 2009
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 her daughter knew whether any copies of the videotape were sold.
Renee subsequently saw the videotape of the performance, and stated that it had accurately represented what had occurred during the play. When asked in her deposition if she found anything objectionable about the videotape, and whether she would have liked to have received a copy, Renee stated that she did not want a copy of the videotape because she had tripped during the performance. Renee did not identify any other issues regarding the content of the videotape.
Plaintiff never viewed the recording of the performance. However, she believed that Renee was "exploited" because plaintiff viewed the PTA distinct from the Academy, and the videographer was hired by the PTA, not the EOBOE. Although plaintiff could not specify how Renee had been "damaged" as a result of the videotape, she believed that it was her obligation as a parent to protect Renee from what could happen in the future. According to Renee, although she could not point to any damages as a result of the videotaping, she did not want the tape "out there" in case she "became older and . . . got a name for [herself]" because it was not one of her best performances.
On February 14, 2007, plaintiff filed her complaint against the PTA, the EOBOE and Harris. On September 25, 2008, the PTA and the EOBOE filed a motion for summary judgment. The court granted defendants' motion on October 24, 2008, and entered a confirming order on November 17, 2008.
The trial court found that plaintiff failed to establish a prima facie case for invasion of privacy because there was no evidence that the PTA received a commercial benefit as it acted with a charitable, rather than commercial purpose. On appeal, plaintiff argues that the trial court erred in determining that:
1) she failed to establish a prima facie case for invasion of privacy; and 2) the PTA was entitled to immunity pursuant to the Charitable Immunity Act (CIA), N.J.S.A. 2A:53A-7 to -11.
A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2009). We employ the same standard when reviewing summary judgment orders. Block 268, LLC v. City of Hoboken Rent Leveling & Stabilization Bd., 401 N.J. Super. 563, 567 (App. Div. 2008).
Plaintiff first argues that the trial court erred when determining that she failed to establish a prima facie case against defendant for invasion of privacy by appropriating Renee's likeness. Plaintiff contends that the court erroneously required her to show that the PTA used Renee's likeness for a financial or commercial benefit. Plaintiff asserts that her allegations of mental anguish alone were sufficient to establish a cause of action. We disagree.
The tort of invasion of privacy encompasses "four distinct kinds of invasion of four different interests of the plaintiff." Rumbauskas v. Cantor, 138 N.J. 173, 179-80 (1994) (quoting Canessa v. J. I. Kislak, Inc., 97 N.J. Super. 327, 334 (Law Div. 1967) (quotation omitted)). They include:
(1) intrusion (e.g., intrusion on plaintiff's physical solitude or seclusion, as by invading his or her home, illegally searching, eavesdropping or prying into personal affairs);
(2) public disclosure of private facts (e.g., making public private information about plaintiff);
(3) placing plaintiff in a false light in the public eye (which need not be defamatory, but must be something that would be objectionable to the ordinary reasonable person); and
(4) appropriation, for the defendant's benefit, of the plaintiff's name or likeness. [Rumbauskas, supra, 138 N.J. at 180 (quoting W. Page Keeton, et al., Prosser & Keeton on the Law of Torts § 117 (5th ed. 1984).]
See also Restatement (Second) of Torts § 652A (1977). Although these four privacy claims are grouped together, they actually "have almost nothing in common except that each represents an interference with the right of the plaintiff to be left alone." Rumbauskas, supra, 138 N.J. at 180 (quotations and citations omitted).
"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 his [or her] privacy." Restatement (Second) of Torts § 652C. Accordingly, to establish a prima facie case for invasion of privacy by appropriation of likeness, a plaintiff must establish: 1) the defendant appropriated the plaintiff's likeness, 2) without the plaintiff's consent, 3) for the defendant's use or benefit, and 4) damage. See Faber v. Condecor, Inc., 195 N.J. Super. 81, 86-90 (App. Div.), certif. denied, 99 N.J. 178 (1984).
In addressing claims for appropriation of one's likeness, the Court has endorsed the approach in Canessa. Rumbauskas, supra, 138 N.J. at 183 (citing Canessa, supra, 97 N.J. Super. at 395). Under Canessa, the purpose of an appropriation of likeness claim is to vindicate the property interest the plaintiff has in his or her name or likeness. Canessa, supra, 97 N.J. Super. at 343 (noting that "the emphasis on the aspect of 'injury to feelings,' has tended to lose 'the forest for the trees,'" and that "[t]he property aspect of suits involving appropriation for commercial advantage has been obscured"). In this context, the "injury to feelings," which may also accompany an unauthorized appropriation of likeness, is secondary to the injury to property, and is thus not dispositive. See id. at 352 (holding that the appropriation of likeness is an invasion of a property right, rather than an "injury to the person," but that a claim for appropriation of likeness may include mental distress and injury to feelings).
Since Canessa, courts have reinforced this property-centered approach to appropriation of likeness claims, and have consistently required plaintiffs to show that defendants received a commercial benefit through the unauthorized use of plaintiff's likeness. See McFarland v. Miller, 14 F.3d 912, 919 n.11 (3d Cir. 1994) ("In New Jersey, to sustain an action claiming misappropriation of the image of another, a commercial purpose must be present."); Tellado v. Time-Life Books, Inc., 643 F. Supp. 904, 909-10 (D.N.J. 1986) (concluding that "under New Jersey common law, defendant would be liable for the tort of misappropriation . . . only if defendant's use of plaintiff's likeness was for a predominantly commercial purpose . . . mainly for purposes of trade, without a redeeming public interest, news or historical value"); Castro v. NYT Television, 370 N.J. Super. 282, 297 (App. Div. 2004) (holding that "use of a person's name or likeness 'for trade purposes' is an essential element of the tort"); Faber, supra, 195 N.J. Super. at 88 (finding misappropriation of likeness because the plaintiff's picture was used to promote sales and was thus a trade purpose). Accordingly, we reject plaintiff's argument that she was not required to show that defendant used Renee's likeness for a commercial purpose. We also reject plaintiff's suggestion that defendant's recording of Renee, in and of itself, should have been sufficient to establish an appropriation of likeness claim.
A recognized corollary to Canessa's property-centered approach is that there is no appropriation of likeness when the use of an individual's image is merely "incidental" to the total presentation. See Castro, supra, 370 N.J. Super. at 297 (citing Restatement (Second) of Torts § 652C, comment b). In accordance with this principle, Castro held that an emergency room patient, whose hospital experience was filmed and broadcast on cable television, could not establish a claim for misappropriation merely because his name or his appearance is brought before the public, since neither is in any way a private matter and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendants' benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded. [Ibid. (quoting Restatement (Second) of Torts § 652C, comment b).]
Plaintiff's argument that every unauthorized recording amounts to an unlawful appropriation of another's likeness is belied by this recognized exception for incidental use. We are satisfied that the court applied the correct legal standard in assessing whether plaintiff established a prima facie case for appropriation of likeness.
The trial court's conclusions are fully supported by the record. The record is devoid of any evidence that defendant used Renee's likeness to obtain a commercial or trade benefit, or that Renee's personal appearance in the play was used to any greater degree than other students in the performance.
Nor did plaintiff produce any evidence to show how she or Renee was damaged as a result of the videotaping. In fact, plaintiff never viewed the videotape. Plaintiff alluded to the possibility that the tape could hurt Renee in the future. However, plaintiff cites no legal authority to support her apparent position that the damage element can be satisfied on such contingent grounds.
Because plaintiff failed to establish that the PTA used Renee's image in a manner that furthered a commercial or trade purpose, that Renee's likeness was used in anything more than in an incidental manner, and that Renee was damaged by defendant's conduct, we affirm. Because we affirm the grant of summary judgment based on plaintiff's failure to establish a prima facie case for invasion of privacy, we need not address plaintiff's second argument.