IP suit accuses Florida team of unauthorized use of fan photo

By Pankaj Ladhar of Manos • Alwine P.L.

A Florida basketball fan has filed an intellectual property lawsuit against the Orlando Magic, alleging that the team used her photo without her knowledge and against her wishes. Team officials have not commented on the unauthorized use allegations, but state that the plaintiff’s image is no longer being used in marketing campaigns.

The photo at issue was taken during the Magic’s 2011 playoff push, and features the plaintiff, a 30-year-old woman, cheering with her arms raised in the air. The image was featured on light-post banners throughout Florida, in a tourist magazine, and enlarged on the back of a bus. Although the ads were pulled and the bus was repainted soon after the team was knocked out of the playoffs, the plaintiff claims that it caused her embarrassment and discomfort in both her personal and professional life.

In her lawsuit, the plaintiff accused the team of misappropriation of her likeness, invasion of privacy and infringement of publicity rights. She is seeking damages in excess of $15,000.

When asked about the lawsuit’s chances, a local intellectual property expert told the Orlando Sentinel that the plaintiff will likely not succeed. She is not a public figure, and therefore lacks the sort of publicity rights that the law aims to protect.

Further, he said, there is a disclaimer on the back of every game ticket which warns of the team’s “irrevocable and unrestricted right and license” to use the ticketholder’s image for promotional purposes “without further authorization or compensation.”

However, the plaintiff’s attorney argues, the use of his client’s picture goes above and beyond the rights detailed in that disclaimer. The plaintiff did not agree to have her picture used in such a noticeable manner simply by walking into the arena that day.

What do you think? Should the lawsuit succeed?

Source: The Orlando Sentinel, “Woman sues Orlando Magic over use of her image,” Stephen Hudak, Sept. 14, 2012