Tennessee Personal Rights Protection Act: There Has to Be Use In Advertising

The above picture is one Lauren Gauck, a Fox news anchor  in Memphis, Tennessee. Ms. Gauck sued Karamian, the owner of a gossip (sorta) website called “The Dirty.com”  that allows users to post pictures of women in order to ask Karamian and “the Dirty Army” (the site’s readers)  whether the women are “hot” or not. The Dirty Army also posts pictures of people, mostly women, who they want to “slam” or ridicule. Karamanian posts what are supposed to be witty comments on the pictures, which mostly consist of his opinion that the women are not “hot” enough. The Dirty.com supposedly published photos of Ms. Gauck and her friends, along with a pornographic picture (though redacted) of a woman who was represented to be Ms. Gauck, but in fact, was not her. Karamanian posted a couple of snarky comments about how it was time for her and her friends to “go to a one-piece.”

    Ms. Gauck sued under Tennessee’s Personal Rights Protection Act (“TPRPA”) (and asserted various tort theories under Tennessee common law), but was not successful in obtaining an injunction against the future posting of the material because the court found that she was not likely to succeed on the merits of her TPRPA claim. In short, the court found that Tennessee’s Personal Rights Protection Act is more restrictive than the Restatement approach adopted by other states. Under Tennessee law, as contrasted with states that follow the Restatement approach, to succeed on a TPRPA claim, the plaintiff has to show that  the Defendant used her image or likeness in advertisement or solicitations, rather than for the defendant’s “own purposes and benefit.” Because Ms. Gauck was unable to show a causal connection between thedirty.com’s use of her name and image and an increase in visitors to the site or advertising revenue, she was unable to show that her image was being used as an advertisement or solicitation. Consequently, her claims failed and she was not able to enjoin the site from publishing her image and likeness in the future (although the opinion indicates that the defendant had pulled the photos down and that defense counsel had stated that Karamian had no intention of republishing the post pertaining to Ms. Gauck.

Bottom Line: To win on a TPRPA claim, the plaintiff has to show that her image or likeness was used in advertising…simply showing that the defendant received a benefit from the use of the image or likeness is not enough under Tennessee’s narrowly drawn statute.

Gauck v. Karamian, et. al, No. 2:11-cv-02346,  2011 WL 3273123 (W.D. Tenn. July 29, 2011).

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