By Howard Fischer
Twitter: @azcapmedia

PHOENIX — A company that uses your image to promote its product or service without first getting your approval is breaking the law and can be sued for damages, the Arizona Court of Appeals has ruled.

In a new decision, judges rejected arguments by the owners of Denim & Diamonds, a Mesa county-western-theme nightclub and dance bar and a sister operation of the same name in Tucson, that nothing in state law creates a “right of publicity” for ordinary Arizonans. And that, the clubs’ attorney argued, left more than a dozen actresses, models and social media influencers with no legal remedy.

Appellate Judge Peter Swann conceded the law put on the books in 2007 says only soldiers and their families have a right to sue when someone uses their name, portrait or picture for advertising or soliciting business.
But Swann, writing for the unanimous three-judge panel, said that doesn’t resolve the matter.

“Arizona recognizes the common law right of publicity,” he wrote. And Swann said the fact legislators created a statute specifically dealing with soldiers did not dissolve that right for everyone else.

“Simply stated, Arizona always has, and continues to, recognize a personal right of action for violation of the right to publicity as a form of invasion of privacy,” the judge said. He said there are cases spelling that out going back 75 years.

Beyond that, Swann pointed out the Arizona Constitution, unlike its federal counterpart, has a specific right of privacy.

And while the plaintiffs in this case are people who normally get paid for the use of their images, there is no reason to believe that the same rights of privacy — and the same rights to sue — exist for anyone else who finds his or her image being used without permission for commercial purposes.

According to court records, the women in this case say that Bay Entertainment LLC, which owns both establishments, began using what they said were “pirated photos” from unrelated photo shoots.

Each photo features one or more of them in a costume, bikini or dress. Then Bay Entertainment edited the photos to include slogans or advertising like “St. Patrick’s Day Bash!” or promoting 50-cent drinks during “happy hours.”

The company convinced Maricopa County Superior Court Judge Lisa Daniels Flores to throw out the case based, at least in part, on the claim that the women had no legal right to sue. And the main argument was that lawmakers, in creating a special statute for soldiers to protect their images, intended to deny the same rights to everyone else.

Swann and his colleagues weren’t buying it.

“Nothing in (the law on soldiers) indicates the legislature intended to abrogate civilians’ long-held common law right of publicity,” he said. In fact, Swann pointed out, the 2007 law specifically says the legal rights and remedies “supplement any other rights and remedies provided by law, including the common law right of privacy.”

The appellate judges were no more impressed by arguments by Bay Entertainment that any claim of the women is preempted by the federal Copyright Act.
Swann said it would be one thing if the women were claiming the company was using anything in the photographs that is protect by copyright. But their claim, he noted was that Bay Entertainment “misappropriated their brands and likenesses represented in the photographs.”

The new ruling does not resolve the entire case.
Swann noted Bay Entertainment has a third defense: All the images implied is that the women approve of dancing with cowboys.

“Yet no reasonable person would find that implication to be so highly offensive as to be tortuous,” the company argued.

Swann said there is a two-part test to determine invasion of privacy.

The first is whether the false light in which the person was placed “would be highly offensive to a reasonable person.” The second part is whether the defendant “acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”

In this case, the judge said, Bay Entertainment posted more than 250 photos of the women on its social media pages.

“In doing so, it created an implication that (the women) support, endorse, were paid by, or were in some other way associated with Denim & Diamonds,” Swann wrote.

“Bay Entertainment does not dispute that its postings gave rise to this implication, nor that it is false.”
But he said it is up to a jury to determine if this implication is highly offensive to a reasonable person in the position of the women who are models and influencers who regularly pose for such photographs.