The Volokh Conspiracy
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Right of Publicity Lawsuit by Alleged "Pantless Couponer" Dismissed
“Just because the story and the photograph may be embarrassing or distressful to the plaintiff does not mean the newspaper cannot publish what is otherwise newsworthy.”
From the Report and Recommendation by Magistrate Judge Philip R. Lammens in Anderson v. Coupons in the News (M.D. Fla. July 28, 2020), which Judge James S. Moody, Jr. just adopted yesterday:
This lawsuit arises out of Plaintiff's visit to a Best Buy store in Lady Lake, Florida, during which she got into a dispute with an employee over an expired coupon and was ultimately arrested for disorderly conduct. While there is disagreement as to whether Plaintiff dropped her pants during the dispute, Defendant Coupons in the News …, subsequently used Plaintiff's mug shot in articles posted on its website that detailed the events and labeled Plaintiff the "Pantless Couponer."
Plaintiff brought this action against Coupons alleging that its conduct in publishing the articles was actionable on the theories of commercial misappropriation of likeness, invasion of privacy, intentional infliction of emotional distress, and unjust enrichment….
Central to her claims against Coupons, is Plaintiff's conclusory allegation that the subject articles are advertisements…. [But] the articles attached to the Second Amended Complaint (Exhibits B and C) clearly are not advertisements…. On their face, the articles recount the events surrounding Plaintiff's arrest at the Best Buy store. Crimes and arrests are newsworthy matters, falling within the scope of legitimate public concern….
"[W]ithin the scope of legitimate public concern are matters customarily regarded as 'news,'" which includes publications concerning crimes, arrests, police raids, suicides, marriages, divorces etc…. Florida courts have confirmed that "where one becomes an actor in an occurrence of public interest, it is not an invasion of her right to privacy to publish her photograph with an account of such occurrence." "Just because the story and the photograph may be embarrassing or distressful to the plaintiff does not mean the newspaper cannot publish what is otherwise newsworthy." …
Plaintiff alleges in a conclusory manner that Coupons' publication of the articles with her mugshot was outrageous. However, while the articles may be embarrassing or distressful to Plaintiff, they detail a matter of legitimate public concern and are certainly not "atrocious … and utterly intolerable in a civilized community." Accordingly, Plaintiff has failed to allege a plausible claim against Coupons for intentional infliction of emotional distress ….
Plaintiff also seeks damages from Coupons for unjust enrichment. To state a claim for unjust enrichment, Plaintiff must allege that she has conferred a benefit on Coupons, who has knowledge thereof; Coupons voluntarily accepted and retained the benefit conferred; and the circumstances are such that it would be inequitable for Coupons to retain the benefit without first paying the value thereof to Plaintiff….
Plaintiff alleges that the articles with her "misappropriated" photograph conferred some unspecified benefit on Coupons. It is unclear what benefit the articles could possibly have conferred since they simply recounted the events surrounding Plaintiff's arrest (with Plaintiff's photograph used as an illustration); and the articles were not advertisements, nor did they directly promote a product or service of Coupons. Accordingly, Plaintiff has failed to allege a plausible claim against Coupons for unjust enrichment.
Likely because of Florida's anti-SLAPP statute, the District Court ordered that, "Defendant Coupons in the News, LLC's is directed to file its motion for attorney's fees and costs within fourteen (14) days of this Order."
