In Bullard v. MRA Holding, LLC, Case No. S12Q2087 (decided Mar. 28, 2013), the Georgia Supreme Court held that Georgia law recognizes a tort claim for misappropriation of likeness. However, it severely limited the potential value of such a claim.

Ms. Bullard was videotaped when she was 14 years-old in a parking lot in Panama City, Florida. The defendant obtained the videotape and included the recording of Ms. Bullard in its College Girls Gone Wild video series. In addition, the defendant put a still photograph of Ms. Bullard on the cover of a video box and used her image in television and Internet advertisements. Ms. Bullard had never consented to the use of her image.

Ms. Bullard’s case was pending in federal court in Atlanta, and that court certified to the Georgia Supreme Court a number of questions, primarily addressing whether or not Georgia law recognized a tort for the misappropriation of Ms. Bullard’s likeness. The Georgia Supreme Court concluded that Georgia law recognized that claim. The claim had three elements: (1) appropriation of another’s name and likeness whether such likeness was a photograph or another reproduction of the person’s likeness, (2) without consent, and (3) the appropriation was for the financial gain of the appropriator. Opinion, p. 8. The Court further held that such a claim would exist even if the plaintiff’s likeness did not have any inherent or preexisting commercial value. Opinion, pp. 8-9.

However, the value of such a claim may be very limited. The Court held that a plaintiff could not recover general damages such as damages for embarrassment or wounded feelings. The measure of damages would be the value that the defendant derived from the use of Ms. Bullard’s image. As the Court put it, “Bullard must nevertheless show that the use of her image actually added value to [the defendant]’s advertising efforts that otherwise would not have existed without the use of her image.” Opinion, p. 13. For a private citizen who is not in the business of making commercial use of his or her image, showing the amount of that added value may be exceedingly difficult.

The opinion is available at http://www.gasupreme.us/index.php