Bill, a student at State University, needed a way to get some cash quickly. He took a photograph of State University's head cheerleader, Marla, and started selling jerseys with her photograph on the back under the caption of "She's Hot." Marla wants to

Question

sue for defamation. She asks you if she could win on a defamation claim and if there is anything else for which she should sue. Discuss the elements of the legal theories involved and what you should tell Marla.

Answer 1

Defamation is probably not the appropriate cause of action for Marla. Truth is a defense. The photograph is not any type of falsehood. Also, an opinion is defamation only if it implies a statement of objective fact. The statement "She's Hot" is probably just an opinion of Bill's although arguably it could be a statement of objective fact. At any rate, the cause of action that would most likely be winnable for Marla would be an action for the appropriation of her likeness, a type of invasion of privacy. The elements of an action for misappropriation of name or likeness are (1) that the defendant misappropriated the plaintiff's name or likeness for the value associated with it, and not in an incidental manner or for a newsworthy purpose, (2) the plaintiff can be identified form the publication, and (3) the defendant derived some advantage or benefit.