Topheavy Studios, Inc. v. Doe

2005 WL 1940159 (2005)

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Nature of the Case

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Facts

In March 2003, P and two of her friends went to South Padre Island for spring break. P was seventeen years old at the time. P admits that she illegally drank alcohol while on the island and that she obtained and used a fake California identification card, which falsely stated that she was twenty-one years old. D was on the island to film footage of young women on spring break for use in a forthcoming video game entitled 'The Guy Game.' The Guy Game is a trivia contest that rewards players for correct responses by showing them images of topless women. D's plan was to approach young women and offer them a chance to win a small amount of money if they agreed to participate in the filming of the trivia game. Each woman was asked to display identification proving that she was at least eighteen years old, sign a 'Model Release,' and fill out a questionnaire. She was then placed with a small group of other contestants until it was their turn to go on stage. When the group appeared on stage, each woman was asked a series of trivia questions. A woman received points for correct answers but was instructed to expose her breasts for each incorrect answer. A large and rowdy crowd of onlookers gathered around the stage and on the balconies of nearby bars to watch the filming. P agreed to be a contestant and signed the release with the false name that appeared on her fake identification card. She also displayed the fake identification card to prove that she was at least eighteen. The expiration date on the identification card did not match the birth date listed on the card, and her zip did not match the address. P listed an Austin, Texas, phone number. The release contained scratch-outs where P had begun to write her actual identification information. D allowed P to participate in the contest despite the irregularities on the identification card and release. P exposed her breasts to the crowd at least three times. Doe received twenty dollars in 'prize money' for her participation. She was not provided with a copy of the release. P was informed by her brother that the game contained multiple images of her exposing her breasts. P also discovered that her likeness was being used to market the game on the internet. P sued D for (1) invasion of privacy based on both misappropriation of her likeness and the disclosure of private and embarrassing facts; (2) negligence; (3) negligence per se; (4) intentional infliction of emotional distress; (5) unjust enrichment; and (6) civil conspiracy. P requested and received a temporary restraining order preventing any further distribution of the game. The trial court issued a temporary injunction and granted P's motion to proceed under a pseudonym. D filed this accelerated interlocutory appeal seeking a dissolution of the temporary injunction.