Consent Issue Remains in 'Girls Gone Wild' Case

     ATLANTA (CN) - The producers of a "Girls Gone Wild" video may be liable for using unauthorized footage of a half-naked 14-year old girl, a federal judge ruled.
     While on spring break in Panama City, Fla., in April 2000, 14-year-old L.B. met two men who asked to see her "boobs."
     L.B. complied, knowing that one of the men, who did not identify themselves, was filming her. Later, that footage appeared in "Girls Gone Wild, College Girls Exposed, Volumes 1 and 2." A photo of L.B. exposing her breasts also appeared on the cover of the videotape box, and in television and Internet advertisements promoting the tape, some of which appeared during the "Howard Stern Show" commercial break.
     Claiming that she had not consented to the use of her image in a "Girls Gone Wild" video, nor to the distribution of the video, L.B. sued MRA Holding and Mantra Films.
     The 2004 lawsuit alleged that the video had caused L.B. great humiliation and emotional distress. She allegedly became known as "porn star" at school, and was harassed by faculty, students and administrators.
     Though L.B. filed suit in Georgia, the producers fought to apply Florida law since the video had been shot in Florida, and they said Georgia law was "underdeveloped" with respect to L.B.'s claims.
     U.S. District Judge Julie Carnes disagreed, finding that the plaintiff had suffered the alleged injury in Georgia, where she lived and attended school.
     L.B. had not been injured by the act of being videotaped in Florida, but by the promotion and distribution of the tape nationwide, according to the 41-page ruling.
     Carnes dismissed two of L.B.'s claims, which sought damages for "exploitation of children" and negligent infliction of emotional distress.
     The judge agreed that L.B. had failed to prove that the defendants knew she was a minor, or that her behavior amounted to sexually explicit conduct.
     What's more, Georgia law allows emotional distress damages only where the plaintiff has suffered a physical injury, which was not L.B.'s case, the ruling states.
     Although Georgia law is unclear on the issue, Carnes conceded that L.B. may prevail on the claim that the defendants used her image for commercial purposes without her consent.
     "That plaintiff behaved foolishly and recklessly by baring herself to a stranger with a camera is an obvious fact," Carnes wrote. "Yet, 14-year old middle schoolers sometimes to stupid things, with little thought for future consequences. Defendants exploited that momentary foolishness for their own commercial gain, with no concern for the humiliation that could befall plaintiff when her image was placed on the cover of their video. Moreover, while defendants presumably made a great deal of money off the venture, plaintiff received no compensation. If nothing else, defendants have acted churlishly in their stingy refusal to share some of the vast revenue they gained from selling a video for which the plaintiff was the cover girl."
     The defendants used L.B.'s semi-nude image on a video cover and in TV ads without consent from the girl or her parents, but "it is not at all clear that the law has caught up with this kind of vulgar exploitation of a young girl," the decision states.
     "On the other hand, while plaintiff may have agreed to be videotaped, she did not agree for the defendants to plaster her image on the cover of a video box containing film of other half-naked girls and then advertise that image, nationwide, on television," Carnes wrote. "Stated another way, if a 14-year old girl agrees to be filmed in a semi-nude state, has she also agreed to have her image used on the cover of a video box to advertise a video product that she did not even know was going to be created? If her conduct did constitute agreement to this broader use, does the fact that she was underage when she was filmed destroy an inference of consent?"
     Carnes concluded that the Georgia Supreme Court should decide whether L.B. has a valid claim for commercial appropriation of her likeness, and, if so, what type of damages she may recover.
     Georgia law fails to clearly state whether the plaintiff must prove that her likeness had commercial value when the defendants first used it, and similar decisions from other states offer no clear guidance, according to the ruling.
     The state Supreme Court must also decide if Georgia law applies and if the plaintiff's consent to being filmed can be canceled by her minor status, the ruling adds.