Bonner v. Fuji Photo Film, et al., USDC N.D. California

The plaintiff participated in a photo shoot for a national magazine when she was 7 years old. As a condition of participating, the plaintiff’s mother signed a broad consent form giving the photographer the rights to use, reproduce and license any photos: “For valuable consideration, I hereby irrevocably consent to and authorize the use and reproduction by you, or anyone authorized by you, of any and all photographs taken by Doug Menuez/Reportage negative or positive, for any purpose whatsoever, without compensation to me. All negatives and positives, together with the prints shall constitute your property, solely and completely.” Eleven years later, plaintiff saw a photo of herself on packaging for a Fuji disposable camera. The plaintiff’s father filed suit against Fuji, the photographer and intermediate licensors of the photograph for violation of the California statutory right of publicity (Cal. Civil code §3344); common law appropriation of likeness; violation of Cal. Bus. and Prof. Code §17200; negligence; intentional infliction of emotional distress; and invasion of privacy.

The court granted the defendants’ motion for summary judgment on all claims. The court held that the consent agreement was valid. The court rejected the plaintiff’s argument that the agreement was unenforceable, finding that the consent was clear and was written in simple language so that a layperson could understand it. The court also found that the consideration the plaintiff received was in the form of participating in a photo shoot for a national magazine and the possibility of exposure in that magazine. The court held that the consent defeated the common law claim for appropriation of likeness.

Regarding the alleged violation of Cal. Bus. and Prof. Code §17200, which prohibits unfair, unlawful and fraudulent business acts or practices, the court found that there was no evidence that the defendants’ use of the photograph violated the policy or spirit of any laws. Regarding the negligence claim, the court explained that the defendants did have a legal duty to obtain a valid consent from the plaintiff before using her photograph for a commercial purpose, but held that the defendants did not breach that duty because they had in fact obtained a valid consent. The court concluded that the defendants’ actions did not rise to the level of outrageous behavior necessary to find that they inflicted emotional distress, and, regarding the plaintiff’s invasion of privacy claim, the court held that the plaintiff did not have a reasonable expectation of privacy when she participated in the photo shoot for the magazine.