January 24, 2000
LOUDER and CROWDER-STARKS v. COMPUSERVE INC. et al.
Los Angeles County Superior Court
BC 153 274
July 5, 1996
Attorneys for Plaintiff
- David L.Amkraut, Esq. , 900 Wilshire Blvd., Suite # 230, Los Angeles, California 90017 (213) 228-0400
- Jamie R. Schloss Esq., 11755 Wilshire Blvd. , Suite# 1400, los Angeles, Ca. 90025 (310) 477-5455
Summary of Facts
This was a class action, brought under California’s statutory “right of publicity” statute, Civil Code section 3344. Section 3344 bars the commercial use of a person’s image without prior permission. The Complaint also included causes of action for violation of the common law right of publicity, and for negligence.
The Complaint alleged that the defendants published hundreds of photographs of about 70 young women and children, without the subject’s prior permission. Some the photographs were nude or partially nude.
The defendants asserted various affirmative defenses, including immunity under the “Good Samaritan” provisions of the “Federal Computer Decency Act”.
The photographs were taken or obtained by defendant Robert Schwartz, a Hollywood based photographer. They were uploaded into photo collections operated by defendant “Go Graphics Inc.”, and kept on the proprietary CompuServe computer network. At the time CompuServe was the second largest Internet service provider as well as offering it’s own proprietary areas. On the CompuServe system, the photographs were available for viewing, downloading, printing-out, etc. by CompuServe subscribers.
The photographs at issue were 431 photographs of about 70 persons. Plaintiffs sought statutory damages of $750.00/ wrongful publication, plus punitive and attorney’s fees as provided by section 3344.
- The Class settled with defendant CompuServe Inc. for $20,000
- The Class settled with defendant Go Graphics Inc. for $650,000 following mediation.
- The Class obtained Summary Judgment against defendant Schwartz in the amount of $329,250 plus attorney’s fees and costs.
- The Class members received a net of approximately $790. per photograph, a recovery above the statutory penalty. Plaintiff’s counsel also succeeded in identifying the persons shown in the great majority of the photos.
Pioneering case for these reasons
Apparently this was the first case applying California’s section 3344, or similar “right of publicity/commercial misappropriation” statutes in other states, to un permitted publication of photographs on the Internet or by CompuServe Service Providers.
This was one of the first cases, and the first in California, addressing application of the “Good Samaritan” provisions of the Federal Computer Decency Act; i.e., could defendants CompuServe and Go Graphics avoid liability by asserting that the offending content did not “originate” with them and they did not “control” or “publish” it?