In an unpublished, non-precedential opinion, the U.S. Court of Appeals for the Ninth Circuit concluded that a display of sample images for which a company provides copyright licenses to end users did not violate a celebrity’s rights of publicity when the celebrity gave implied consent to have her photograph taken on the “red carpets” of various events. Shirley Jones v. Corbis Corporation, Case No. 11-56082 (9th Cir., July 16, 2012 (Fletcher, J.; Wardlew, J.; Bybee, J.).

Corbis maintains an online library of digital images and sells sublicenses for the images on behalf of the original copyright owners, such as photographers and news wire services. Corbis’ image library is searchable by keywords, and it displays low-resolution sample images of the copyrighted photographs that match applicable keywords. 

Shirley Jones, the star of the Partridge Family television series, filed a class action complaint against Corbis alleging that its display of sample images associated with her name violated her common law and statutory rights of publicity. Specifically, Jones claimed that Corbis appropriated her image to its advantage to sell its product, namely, copyright licenses for the images of Jones and other “California residents” named in the class action complaint.

The district court explained that, under California law, to sustain a common law or statutory action for commercial misappropriation, a plaintiff must prove that the defendant appropriated his or her likeness without consent.  Jones argued that she did not consent to Corbis’ use of the sample images to solicit sales of licenses for the copyrighted images. In granting Corbis’ summary judgment motion, the district court focused on the fact that Jones did not dispute that she consented to having photographers at red carpet events photograph her likeness and distribute the images, and that such practices are the custom in the entertainment industry.  Jones appealed. 

On appeal, the 9th Circuit affirmed the district court’s ruling that consent is determined from a plaintiff’s manifested action or inaction, and not her subjective belief as to her consent. Accordingly, Jones’ implied consent when appearing at red carpet events where she was knowingly photographed allowed for the use and distribution of her likeness.

Practice Note:  Although this decision likely will be helpful to image defendants in rights of publicity actions, it may not have the same impact on similar actions involving paparazzi photographs or where images used to promote products or services and which are taken or used without the consent of the image subject.