Pantless Couponer Loses Right of Publicity Lawsuit

From the Eleventh Circuit's decision yesterday in Anderson v. Coupons in the News (before Judges Wilson, Jordan & Newsom):

Accepting the factual allegations in the second amended complaint as true, Ms. Anderson alleged that she was arrested at a Best Buy store following a dispute over coupons. The store manager told police that Ms. Anderson had dropped her pants and was showing her buttocks.

Ten days later, Coupons published an article on its website entitled "Pantless Couponer Arrested After Checkout Dispute." The article was accompanied by a photograph of the front of a Best Buy store and a superimposed image of Ms. Anderson's booking photograph.

In Count 1 of her second amended complaint, Ms. Anderson alleged that Coupons violated Fla. Stat. § 540.08(1)(a), which (as relevant here) prohibits the unauthorized publication or use of a person's photograph or other likeness "for the purpose of trade or for any commercial or advertising purpose." The Florida Supreme Court has held that the purpose of § 540.08 "is to prevent the use of a person's name or likeness to directly promote a produce or service because of the way that the use associates the person's name or personality with something else."

Ms. Anderson characterized the Coupons article … as an "advertisement" in her complaint, but the district court ruled that a review of the document demonstrated that it was an article and not an advertisement. And because it was not an advertisement or commercial speech, Ms. Anderson's claim under § 540.08(1)(a) failed.

We agree with the district court that Ms. Anderson failed to state a plausible claim under § 540.08(1)(a)…. [The material she is suing over] is an article reporting on Ms. Anderson's arrest. It is not an advertisement. Nor is it commercial speech.

Ms. Anderson argues that Exhibit B is a publication that is a "digital marketing tool known as a click funnel advertisement designed and used solely to promote the business of coupons which is advertising." The argument is based on a line in Exhibit B that allows a reader to click to contact Coupons about advertising. But the complaint does not contain any allegations or claims about a "click funnel advertisement," and Ms. Anderson could not amend her complaint through her response to Coupon's motion for attorney's fees.

Thanks to the Media Law Resource Center MediaLawDaily for the pointer.

Comments

[santamonica811]

Well, the law is an ass.

[rimshot]

[Dilan Esper]

You win.

[Jimmy the Dane]

Too bad the judge did not conclude "the plaintiff's titular assertions do not meet the bare basic requirements necessary to sustain such an action making this endeavor all but for not..."

[ReaderY]

It is what the statute says. But I am inclined to agree that principles intended to safe
guard people motivated by some sort of public-spirited search for truth instead increasingly seem to be used to defend things that go increasing close to prying up women’s skirts to attract paying voyeurs. You can’t (yet) actually probe up the skirts legally. But the moment there’s skirt failure, as occurred here, suddenly it’s news and you can zoom in all you want to. So you have people flying drones around waiting for something like this to happen so they can get a photo.

I have to admit, hearing media companies spout off constitutional ideals when defending this sort of shit, as if they were engaging in the sort of political discourse the First Amendment’s core is about, kinda makes me puke.

But in this case, I think the statute constrains the situation. It’s not an advertisement, so the statute doesn’t apply.

[Jimmy the Dane]

It is funny as long as it happens to someone you don't care for like a Karen or leftist. Not so much funny though when you are the person involved and simply typing ones name into the internet pulls up all kinds of fun stuff literally exposing you. I'm actually not against a "right to be forgotten" to a certain extent because when these principles were enacted the idea that everything would be recorded and available online accessible almost anywhere in the world via a simple search was not even remotely conceptual.

[Longtobefree]

What happens on the web, stays on the web - - - -

[Soronel Haetir]

Forever.

[David Nieporent]

Really? Go find a geocities page.

[Ridgeway]

Wouldn't a pantless couponer be a couponer that is breathing deeply and regularly?

I would think a couponer that dropped trou in protest of a retailer's policies would be "pantsless."

[Cal Cetín]

A savage place! as holy and enchanted
As e’er beneath a waning moon was haunted
By woman wailing for her demon-lover!
And from this chasm, with ceaseless turmoil seething,
As if this earth in fast thick pants were breathing,
A mighty fountain momently was forced

https://www.poetryfoundation.org/poems/43991/kubla-khan

[DavidRoddis]

You seem to conclude that Coleridge is using "pants" as a noun to describe quick, shallow breathing, but I can equally imagine he was inviting us to imagine earth wearing thick, fast pants ("fast" in the sense, obvi, of "adhering firmly" or even "not readily changing color", in which case you wouldn't even have to turn them inside out before washing). Relying on the confused scribblings of an opium addict is never a good idea.

[bevis the lumberjack]

Yeah I’ve never understood exactly. Sometimes retailers refer to them as “pants” but sometimes the ad refers to a type of “pant”. I would think something called a “pair” would be plural, but I don’t make the rules

Seems as if the fancier more expensive places more frequently use “pant”, so perhaps she bought her outfit at Neiman’s or Saks.

[MatthewSlyfield]

The plural pair treatment comes from medieval times when pants were first developed. The two legs were completely separate pieces that tied together at the waist.

I expect that eventually, the treatment of paints as a pair will drop out of the language.

[bevis the lumberjack]

Learn something new every day. Or most days anyway.

[ReaderY]

But if you fon’t have any, you have neither a singular nor a plural.

[Cal Cetín]

Really, most media outlets (not this blog or Reason, of course) are motivated in part by financial considerations. They are generally commercial enterprises trying to attract readers. That includes doing articles and photos which readers would entice readers in.

[santamonica811]

The Volokh Conspiracy's 16 Most controversial posts of 2021. (Number 13 will shock you. )

[Cal Cetín]

Yeah, so without recognizing guild privileges for the media, there should be some distinction between

- publishing someone's photo in a way which falsely implied they agreed to support some product or service, or committed some crime of which they are innocent, or

-Publishing someone's photo to convey truthful information (even if the person conveying the information is motivated by wicked greed)

[Cal Cetín]

This assumes that there's a right to use the photo and it hasn't been pirated.

[Queen Amalthea]

I'm not sure why the truthfulness does the work needed here. If I published an ad for, say, a medicine for delousing children accompanied by an undoctored photo of Cal Cetin applying the medicine to your school age child (let's say it was taken through your living room window from the street) with the caption "Larry's DeLouser, used by your neighbors such as Cal Cetin to delouse his kids" I don't think that the fact that it's 'true' should make that better.

[Cal Cetín]

All right, but the false suggestion is that I agreed to use my name in an ad.

(Incidentally, thank you for choosing a hypothetical involving lice)

If the advertiser were required to disclose "model did not consent to the use of their likeness," then that would address the falsehood issue but make the consuming public wary of the company - "what kind of weirdos are they, snooping on people and using them without consent to promote their products"?

[Cal Cetín]

In contrast, if the media publishes a photo of you picking your nose, there's no assumption that you consented to the publicity - the public knows the media loves prying into even irrelevant secrets - it's part of the reason the media is so very popular. /sarc

[Cal Cetín]

The flip side is that they don't always cover *relevant* secrets - stuff which should be known but isn't.

[Queen Amalthea]

Yeah, my point is I don't care much about the falsehood issue. Truth isn't a hall pass. There's an invasion of privacy there that's important on its own.

It might be different if Cal Cetin were a lawmaker known for wanting to ban products like Larry's DeLouser, then there'd arguably be a public interest angle to weigh on the other side.

[Cal Cetín]

Sure, the former standard in the U. S. was the right to publish the truth, with good motives, and with justifiable ends.

Maybe we could go back to that if the courts are OK with it - it's traditionally combined with the jury deciding what's good motives and justifiable ends.

[Queen Amalthea]

I guess I think that the 3 of the 4 torts described here that don't have truth as an element are fine:

https://www.findlaw.com/injury/torts-and-personal-injuries/what-is-invasion-of-privacy-.html

[Cal Cetín]

Sure, examples of bad motives or unjustifiable ends.

[Queen Amalthea]

I kind of thought of them as examples where truth isn't an element or defense.

[Cal Cetín]

Let's see...

Under the standard I cited, if there was bad motive or justifiable ends, then truth isn't a defense.

Anyway, as I said, the courts don't seem to apply that truth/good motives/justifiable ends standard any more, at least not under that name.

I understand the courts have had a bit of back and forth with the First Amendment and some of these torts, though I don't have the details right now.

[Cal Cetín]

first sentence - bad motive or *un*justifiable ends

[Cal Cetín]

Anyway, I was discussing how a First Amendment with the truth/good motive/justifiable ends interpretation would work out in practice.

If a tort *necessarily* involves bad motives or unjustifiable ends, then by the rules of logic, truth doesn't come into it at all.

But to repeat, the courts no longer seem to rely on this standard, so I was discussing how such a 1A standard *might* work.

[TwelveInchPianist]

"If I published an ad for, say, a medicine for delousing children accompanied by an undoctored photo of Cal Cetin applying the medicine to your school age child (let's say it was taken through your living room window from the street) with the caption "Larry's DeLouser, used by your neighbors such as Cal Cetin to delouse his kids" I don't think that the fact that it's 'true' should make that better."

You're confounding two issues, invasion of privacy and the right of publicly.

[Queen Amalthea]

Am I? Or am I highlighting two long accepted torts that don't have truth as an element?

[Queen Amalthea]

ETA:, well three. Intrusion upon seclusion as well imho.

[Eugene Volokh]

The Legal Complexities in Rotenberg v. Politico—#1332 Might Surprise You!

[John F. Carr]

Police departments hate these constitutional tips!

[Cal Cetín]

Let's be nice and assume that Congress was not 100% clear in its statutes. I mean, it sometimes happens.

That would be an explanation for why the Justice Department had two different interpretations over the course of a year.

The Trump DoJ had a pro-imprisonment interpretation, the Biden DoJ impartially took both the pro-imprisonment and the pro-home confinement position.

If the pro-home-confinement position is politically motivated, we're entitled to suspect that the pro-imprisonment position may also be politically motivated, based on appeals to "law and order."

So Congress could clarify its intentions...lol, I can scarcely finish that sentence, Congress doesn't want the responsibility.

A liberalized home-confinement policy may be a way for the Bureau of Prisons to ameliorate the effect of unduly-harsh sentences.

Ideally, they should get input from victims (if there are any) before making a home-release decision.

[Zarniwoop]

This is the type of quality legal information I come to the VC for!

[Bored Lawyer]

Reminds me of an old joke.
The headlines in the NY papers on Sept. 2, 1939, day after WWII started:

NY Times: German Army Invades Poland; Massive Airstrikes and Lighning Tank Strikes

NY Daily News: Krauts Invade Polaks

NY Post: State Senator Caught With In Brothel

[Queen Amalthea]

State Senator Caught With Jacko on His Backo in Brothel?

[Leo Marvin]

“Headless Body in Topless Bar”

-- New York Post April 15, 1983

[Sarcastr0]

A headline for the ages.

[Cal Cetín]

His name was Herbert Cummings. He did, indeed, run a topless bar.

Charles Dingle, in a drug-crazed frenzy, murdered Cummings, raped a women, took that woman and three others hostage, forced one of them to cut off Cummings' head, then drove around with the hostages - and the head - until he passed out and the police got him.

https://wolfiewiseguy.blogspot.com/2014/05/charles-dingle-drugged-up-scumbag.html

If, instead of being the owner of a topless bar, Herbert Cummings had been some reporter murdered while hanging out at a topless bar, don't you think he would have gotten a more respectful headline, such as "journalist brutally murdered"?

[Michael P]

From a different paper, maybe. The Post lives up (down?) to the tabloid stereotype.

[Sarcastr0]

You see disrespect. I see playing a part in a national legacy.

[Cal Cetín]

To be fair, if it weren't for the headline I wouldn't have been inspired to look up more about the victim.

So I suppose the headline worked, didn't it?

[F.D. Wolf]

If I were the publisher of Coupons in the News, I would include a regular feature entitled "Women's Pants Half-Off".

[AmandaGreen]

Integrated business promotion on the Internet https://mediaonemarketing.com.sg/seo-services-singapore/ is a set of tools used, which are combined into one system.