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MEMORANDUM

TO: Junior Associates, RWA Sections 13 & 16

FROM: Senior Partner Goering

RE: Coton v. TVX, Inc.

DATE: September 2, 2009 Background. Yesterday I met with Robert Augustus Burge, the chief executive officer of TVX, Inc. He has retained us to represent his corporation in defending against Florida state law claims filed by Lara Jade Coton, a young English photographer. Her complaint alleges that our clients have misappropriated her likeness and portrayed her in a false light. For more details about her claims, please refer to the Complaint recently served on our client (posted on the TWEN website). Ms. Coton is admittedly a very talented young photographer who resides and works in the United Kingdom. About five years ago she took a photograph of herself seated in a shadowy window and posted it on her Facebook profile page. (See Exhibit A, attached to the complaint.) Since then she has developed her own internet website to market her photography.

Our client’s employees downloaded Ms. Coton’s picture from her Facebook profile page, believing that the photo was in the public domain. Nothing on the plaintiff’s Facebook page prohibited viewers from using or downloading the photograph, and TVX employees did not alter or edit the photo in any way. Our client believes that Ms. Coton should have known her photo could be readily accessed on Facebook and downloaded by anyone with a password. As you know, anyone can get on Facebook free of charge simply by registering on the internet.

Mr. Burge does not dispute that the company used Coton’s self-portrait for the

packaging of a DVD under the title “Body Magic,” containing what they call “artistically sensual” images. The company printed her photograph on the DVD itself and also on the outside cover of the DVD case. (Please see Exhibits B and C, attached to the complaint.) Her photo is not part of the video recording itself, but appears only on the disc label and the DVD packaging. While our clients used her image without her express authorization, they assumed they could do so because she voluntarily posted her photograph on Facebook. Her complaint alleges not only misappropriation of her likeness, but also promotion of pornography, which she believes casts her in a false light.

By the way, I have not viewed the DVD, but based on Mr. Burge’s interview I think

we can assume the footage is indeed pornographic in nature. Ms. Coton wants money damages from our clients, including punitive damages. She also wants the court to issue an injunction ordering our clients to stop using her image on the “Body Magic” DVD.

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Assignment. With your help, we need to immediately assess the likelihood that the plaintiff will prevail in federal district court on either of her claims. If she is likely to win, we may want to consider settlement negotiations to avoid undue litigation expense for our client. At this point, you may assume that the essential facts alleged in her complaint are not in dispute. You may also assume that the federal district court in Florida has proper diversity jurisdiction as well as personal jurisdiction over our client, which markets the DVD nationwide.

Depending upon the outcome of your research, we anticipate arguing that the plaintiff

cannot prevail because she waived any right to privacy she may have had in the photo. After all, she voluntarily posted her image on Facebook without setting any privacy constraints, so any viewer could download the photo. We also plan to dispute her claim that our client’s use of her photograph depicts her in a false light. Neither the photograph in question nor any other image of her is displayed on the video contents of the DVD itself – only on the label and the packaging.

Research Materials. The relevant Florida statute and several cases that appear to be

on point are cited below. Copies of these legal authorities are posted on the TWEN page. Please limit your research to these materials. Do not look up any other legal authority or background information, except you may consult a law dictionary to ensure you understand any unfamiliar terms.

While not necessary, you may consult the websites identified in the complaint to

learn more background information on the plaintiff and her website photography business. However, if you run into any discrepancies, you must assume that the facts are as stated in the complaint and in this memo. You may not look up any other legal authorities, either in print or online, and you may not investigate any other facts regarding the plaintiff or her claims.

(1) Alameida v. Amazon.com, Inc., 456 F.3d 1516 (11th Cir. 2006). (2) Cason v. Baskin, 20 So. 2d 243 (Fla. 1945). (3) Cummings v. Sony Music, 2003 WL 2271189 (S.D.N.Y. Sept. 30, 2003). (4) Gill v. Hearst Publg. Co., 253 P.2d 441 (Cal. 1953). (5) Kunz v. Allen, 172 P. 532 (Kan. 1918). (6) Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002). (7) Tyne v. Time Warner Ent. Co., LP, 901 So. 2d 802 (Fla. 2005). (8) Valentine v. CBS, Inc., 698 F.3d 430 (11th Cir. 1983). (9) Fla. Stat. § 540.08 (2008).

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Memo Instructions. After carefully reviewing the attached legal authorities, please write the Discussion section of an office memo addressing the appropriate issue or issues of law. Please double-space your memo using 12-point Times New Roman font, and please use at least one-inch margins on all four sides of the page. Include page numbers at the bottom center of each page (except the first), and be sure to include your name and your RWA section number (13 or 16) in your heading.

In preparing your office memo, you are expected and required to cite cases and

statutes consistent with the ALWD citation manual. You are also expected to demonstrate your understanding of when you should cite legal authority to support a statement in your memo. Finally, you must include accurate pinpoint citations to legal authority to support your analysis.

Your completed memo should not exceed five (5) double-spaced pages. I will not

read past the fifth page. Your final memo is due in hardcopy on or before Wednesday, September 30, at 5:00 p.m. Please turn in your hardcopy to my mailbox in the copy room on the Fifth Floor, and then upload an identical electronic version to the TWEN Assignment Drop Box.

Consultation. You may discuss the research materials and your legal analysis with other students in RWA Sections 13 and 16 who are working on the same memo assignment. However, you may not discuss the assignment or any of the research materials with anyone else, including other law students, other professors, lawyers, parents, siblings, roommates, or significant others.

Furthermore, you may not show your written work to anyone, including your classmates. Writing, revising, editing, and proofreading of your memo must be done by you and you alone. Any departure from these requirements, however minor in nature, will be considered a violation of the Honor Code and will be treated accordingly. The only exception is that you may show your written work to me, subject to the 48-hour rule discussed in the syllabus. Honor Code. Before you begin, I expect you to carefully review the Honor Code, available at http://www.law.ualr.edu/academics/pdfs/honorcode.pdf. In particular, read Section III defining infractions of the Code. If at any time you have any questions about what is considered permissible conduct, please contact me immediately by telephone, in person, or by email. It is always better to check in advance to avoid any appearance of impropriety.

If anyone asks you for assistance—or offers you assistance—that would violate

these restrictions, please contact me immediately.