July 18th, 2012

Celebrity Smackdown II: Shirley Jones Consented to Red Carpet Images, Appeals Court Affirms

A federal appeals court has upheld a decision to dismiss a lawsuit against Corbis by actress Shirley Jones, who charged that the photo agency violated her rights of publicity by marketing images of her without permission. The appeals court also refused to vacate an award of attorney’s fees to Corbis totaling $357,533. The decision was handed down Monday by the US Court of Appeals for the Ninth Circuit in Pasadena, California.

Jones originally sued Corbis in November, 2010, arguing that by offering images of Jones for license on its web site, the agency was making commercial use of her likeness without her permission, in violation of California state law.

In throwing out Jones’s claim last year, a federal district court in Los Angeles signaled that celebrity photo agencies can carry on business as usual, without worry that celebrities can sue them for displaying images for license without consent. (Users of those images still have to get consent if they intend to use the images for commercial purposes, such as to promote products or services.)

“The district court found that Jones consented to Corbis’s placement of sample photographs of Jones on its web site for the purpose of selling copyright licenses to those images,” the appeals court wrote, on its way to affirming the decision from the lower court. “Jones admitted that she intended for the photographs at issue to be distributed to media outlets and was not surprised that the photographers would use a third party distributor. She also admitted that she had not placed limits on how such photographs could be distributed…Jones provides no reason why Corbis should have questioned her apparent consent to her photographs being distributed.”

The appeals court judges didn’t bother to address other defenses Corbis had raised before the district court–including First Amendment rights, Copyright Act pre-emption and public affairs exceptions to right of publicity–because Jones failed to prove Corbis distributed the red carpet images without her consent. In other words, Jones effectively gave Corbis consent, so the court did not have to consider other defenses that Cobis had raised.

When the district court originally dismissed Jones’ claim, the judge ordered her to pay the photo agency’s legal costs. Jones challenged the lower court’s award of $357,533, but the appeals court let the award stand, explaining that the photo agency’s accounting of its costs for defending against the actress’s claims were reasonable.

Related story:
Celebrity Smackdown: Walking the Red Carpet Is Consent, Judge Says