girl ipsa loquitur: The Old "She Oughta Be Flattered" Defense Email me!

Wednesday, October 27, 2004

The Old "She Oughta Be Flattered" Defense

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The Spice House is named as defendant in a law suit filed by actress Catherine Zeta-Jones. Kent Wallace, owner of The Spice House, is quoted by Reuters as saying "We are just shocked and bemused by this," Wallace says. "She is a big double-D and we are just B cups. She ought to pick on someone her own size."

The 'Pick on Someone Your Own Cup Size' defense is interesting. However, I like this one better. "She should have been flattered, as far as I'm concerned," Wallace said. This is reported by AP.

Now, it has been awhile since I was in first year torts class thinking about defamation, and it's possible that I just don't remember these defenses, but it is unlikely that they are going to persuade a judge to dismiss the case as Wallace hopes. Zeta-Jones seems to have a valid complaint. Imitation may be the highest form of flattery but can finding yourself pictured with half naked women in an ad for topless cabaret really be imitation? OH WAIT! Zeta-Jones was in a film, the subject of which involved cabaret, in which she starred as a cabaret performer... hmmmm. Perhaps The Spice House was engaging in imitation of a sort. Which begs the next question:

How can this also be true? "It was an image of a beautiful woman," Wallace said. "We had no idea it was Catherine Zeta-Jones." (Also reported by AP)

Hello? No idea it was a massive celebrity who starred as a racy cabaret singer in a wildly successful film? And speaking of imitation, the club now has a dancer billing herself as Katherine "TATA" Jones. I am going to apply the judicially created and also wildly successful DUH test to this:


In light of these obvious and apparent facts is it likely that Wallace is telling the truth about his ignorance of the subject of this photo of a fetching female face?

DUH.



Also, I am not certain who might be expected to actually be flattered by the unauthorized use of their image to promote topless dancing. Perhaps a dancer from a less popular cabaret club. Or a hooker. Or maybe Mrs. Wallace, Kent's mom. As long as were doling out flattery might as well spill some on the ones we love.

My point here, and I do have one, is that I think Kent should have spoken to an attorney before he spoke to the press. I imagine that he thinks he's funny. (Actually, he is kinda funny) But the law rarely, if ever, is going to favor the funnier party to a law suit. Otherwise, attorneys would be a lot more fun to hang out with. Had Kent called an attorney and asked "Should I tell the press that we are merely B cups, being attacked by a bully Double D, who shoulda been flattered in the first place?", the attorney may well have responded "That raises novel and complicated issues of tort law, evidence rules, constitutional principles, and maybe even some Warsaw Pact stuff. I'll need to research this, at my customary fee of $375. an hour and get back to you in 4 to 6 weeks." (It's good to be the lawyer)

Seriously, there are no treaty issues involved here. That's just silly. But I am thinking about evidence. The two issues raised are the use of Wallace's prior inconsistent statement as impeachment of his testimony at trial and his competence as a lay witness to express this opinion of Zeta-Jones' cup size.

If I were him, I'd seriously consider settlement. and I'd keep my day job.

9 Comments:

Blogger Garrison Steelle said...

There's no way he wins this. He is using a copyrighted image without permission. End of story.

-G

4:35 PM  
Blogger Christopher Chopin said...

Poor guy. There's never an end to the story.

The source of the photos was another provider of "royalty free" photos on the web...A German website, as it turns out. And so, while no one's even mentioned copyright, there's some significant question as to, even if one existed, whether the club could be charged with knowledge.

But here's the heart of the matter. The suit seeks unspecified damages and injunctive relief. The club has already voluntarily removed the pictures, making injunctive relief unnecessary and as such somewhat difficult to grant without a likelihood of a repeat...so all that's left is the question of what damages she suffered (none) and of course, the requirement that, as she's a public figure, there be some sort of malicious intent...good luck.

Now I'm not a federal atty, so I don't bother with PACER, and can't really get access to the 9th circuit suit. But as described, while the suit clearly isn't frivolous, continuing to prosecute it to seek barely articulable damages looks like it might be.

Unless you think its possible to get credible expert testimony as to the "dilution" of the value of a celebrity's face...I for one think it'd be a lot easier to put some credentials behind the "Any news is good news" theory...

7:15 PM  
Blogger Girl Ipsa said...

Well, Chris is correct that there’s been no mention of copyright. She is proceeding on a straight defamation theory. But it's not libel, is it? More like appropriation of likeness or FALSE LIGHT. It’s the false light case that has merit. She is absolutely correct to be upset that this defendant gave people the impression that she endorsed their topless shenanigans (Do you like how I got that word in there?) or even was some how affiliated with the club. Men may not understand this point, but women who do not dance topless in cabarets are not thrilled with being thought to do so. We are not “flattered” as it were.

As for the restraining order, unless and until the defendant’s right to use her image is sorted it in a court of law there is the possibility that the tortious act could be repeated. It is a well-settled principle of law that voluntary cessation of unlawful activity is NOT an adequate remedy where the act is capable of repetition. So, even if she can not prove a dollar damage she is still entitled to a restraining order and an adjudication of her ultimate right to exclude others from invasion of the valuable property right in her own image.

Also, Chris, I’m sure you know that merely being difficult to value a damage does not negate the damage and certainly does not foreclose the plaintiff’s right to seek a remedy. I take it that you’re of the mind that she should be flattered and enjoy all that extra attention…

7:38 AM  
Blogger Christopher Chopin said...

Can't confuse the standards here. As to the injunction, actually, the likelihood of recurrence of harm needs to be stronger than that to meet the standard. likelihood is a factor. And the voluntary cessation of the activity, combined with the defense that the act was unknowing, means likelihood = nil...

And at the point she's stating no case for injunction, if she can't articulate some sort of actual damages, the case needs to go away. And this isn't difficult to value. Its nominal at best, in a case where peppercorn damages offer no reward.

So as to the false light. First, its a cause of action that's antiquated and fast becoming a dinosaur due to the heavy media reaction against it. I remember a '94 case in I think colorado where a guy who's siblings were criminals sued for false light and got thrown right the hell out on this ground. But regardless, for a celeb to make the claim, the standard is higher as always. Either knowledge of falsehood, which depending on the photo may be impossible to prove, or reckless disregard is going to be required. And the more the Court is willing to say "any reasonable person has to recognize this woman's face/body," the more that extraordinary standard applies, due to the plaintiff's fame.

2:37 AM  
Blogger Melissa said...

There are several ways that this guy is going to lose, BIG TIME. Pretty much all of Catherine Zeta Jones pictures are copyrighted by someone else. SO there's that. And using images without permission is a valid tort in an of itself.

He was funny but he also sounded like a jackass. I mean how he would have liked it if his picture was used at Chippendale's. (I'm just saying)

2:06 PM  
Blogger Christopher Chopin said...

Sure it is. Just not against the person in the photo, but against the copyright holder. Who hasn't even brought a suit. And Jones asks for no relief on copyright grounds.

As for use of the image, it has to be inextricably related to the resulting profit (none). Oh, and try to claim reputation damage when over 3,000 major news sources have reported the lawsuit, and nullified any misperception created by the site...

Granted, the guy's a jackass. But the suit is a cannon aimed at a mosquito that still won't result in any useful relief from a Court.

1:03 AM  
Blogger Melissa said...

It's not useful that he has to dole out some money to deter himself and other people from doing something like that again?

I mean even if the settlement or damages is not a lot of money for Catherine Zeta Jones. That, in and of itself, does not make the lawsuit itself frivolous. Her image was used for commercial use and I don't think it matters whether or not the profits were huge or small.

2:49 PM  
Blogger eebahgum! said...

> But the law rarely, if ever, is going to favor the funnier party to a law suit.

Which is rather a pity, if you ask me. It used to work occasionally on Ally McBeal, but even Alan on the Practice has discovered that courtroom humour ain't what it used to was.

Good blog

Clive
www.eebahgum.com

4:07 PM  
Blogger Christopher Chopin said...

It may be useful to have the guy dole out some cash to prevent others in the world from committing the same act, sure. Its not legal, its not in the Court's jurisdiction, but sure, in theory, it'd be nice.

But the point isn't that Zeta Jones doesn't need the money. Its that she wasn't damaged. If anything, her Q rating has gone up from the free press. You're talking about thousands of google hits making clear she had nothing to do with the site vs. the number of people who went to the site, reasonably assumed Zeta Jones had become a topless dancer or a club promoter, and then went to the club as a result. Good luck.

As for courtroom humor, I disagree entirely. The funnier party quite often wins. In fact, I've never taken it, but most states even offer a CLE course in the effective use of humor in the courtroom. Especially in jury trials. We like people that make us laugh. Need an example? Look no further than Clarence Darrow. In the Scopes monkey trial he puts Bryan, his o/c, on the stand as an expert in the bible (self professed) and asks him where Cain got his wife, to which Bryan said he'd "let the agnostics hunt for her", and then:

Darrow:
You have never found out?
Bryan:
I have never tried to find.
Darrow:
You have never tried to find?
Bryan:
No.
Darrow:
The Bible says he got one, doesn’t it. Were there other people on the earth at that time?
Bryan:
I cannot say.

Then he moves on to Jonah:

Darrow:
Now, you say the big fish swallowed Jonah, and that he there remained how long—three days—and then he spewed him upon the land. You believe that the big fish was made to swallow Jonah?
Bryan:
I am not prepared to say that; the Bible merely says it was done.
Darrow:
You don’t know whether it was the ordinary run of fish, or made for that purpose?
Bryan:
You may guess; you evolutionists guess.
Darrow:
But when we do guess, we have the sense to guess right.
Bryan:
But do not do it often (p. 285).

Now like it or not, the decimation of Bryan on the stand was a large part of that trial's eventual result. And Darrow's being a funny bastard let him get away with a lot of it.

The problem we're having here is that the sleaze merchant in question just isn't that funny...

5:03 PM  

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