Topheavy Studios, Inc. and Gathering of Developers, Inc. v. Jane Doe
Memorandum Opinion (2005)
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Rule of Law:
A temporary injunction is properly issued when an applicant demonstrates a probable right to relief for a cause of action, a probable, imminent, and irreparable injury, and the injunction does not constitute an unconstitutional prior restraint, particularly when an adult party fails to exercise ordinary care and reasonable diligence in verifying a minor's age for contractual consent to commercial use of their likeness.
Facts:
- In March 2003, Jane Doe, then seventeen years old, traveled to South Padre Island for spring break, where she illegally drank alcohol and used a fake California identification card falsely stating she was twenty-one.
- Topheavy Studios was filming young women on the island to obtain footage for a forthcoming video game, 'The Guy Game,' which rewarded correct trivia answers with images of topless women.
- Topheavy set up a stage on a public street and approached young women, including Doe and her friends, offering money to participate if they were at least eighteen, showed ID, and signed a 'Model Release.'
- Doe agreed to participate, signed the release with a false name from her fake ID, and displayed the fake ID, providing suspicious information on her questionnaire with multiple irregularities, including scratch-outs on the release form.
- Despite the inconsistencies and Topheavy's awareness of potential minor participants, Topheavy allowed Doe to participate without verifying her information, and Doe exposed her breasts on stage at least three times, receiving twenty dollars.
- In August 2004, 'The Guy Game' was released, containing multiple images of Doe exposing her breasts, and her likeness was used to market the game on the internet.
- Doe asserted she did not realize or was not told that the filming was for an internationally distributed video game.
Procedural Posture:
- Jane Doe filed a lawsuit against Topheavy Studios, Inc. and Gathering of Developers, Inc. in the District Court of Travis County, 201st Judicial District.
- In December 2004, Doe requested and received a temporary restraining order (TRO) from the trial court, preventing any further distribution of 'The Guy Game.'
- In January 2005, following a hearing, the trial court issued a temporary injunction against Topheavy and Developers, prohibiting further distribution of the game, and granted Doe's motion to proceed under a pseudonym.
- Topheavy Studios, Inc. and Gathering of Developers, Inc. (Appellants) filed an accelerated interlocutory appeal to the Texas Court of Appeals, Third District, at Austin, seeking a dissolution of the temporary injunction.
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Issue:
Did the trial court abuse its discretion by issuing a temporary injunction prohibiting the continued manufacture and distribution of a video game, where the plaintiff, a minor, established a probable right to relief for invasion of privacy by misappropriation, demonstrated probable irreparable injury, and the injunction was not an unconstitutional prior restraint?
Opinions:
Majority - Bea Ann Smith
No, the district court did not abuse its discretion by issuing the temporary injunction. The court found that Doe established a probable right to relief on her claim of invasion of privacy by misappropriation because, while a minor's contract is voidable unless the minor fraudulently misrepresents her age and the other party justifiably relies, fact issues exist regarding whether Topheavy exercised 'ordinary care and reasonable diligence' and 'justifiably relied' given the suspicious inconsistencies in Doe's identification and questionnaire. The First Amendment does not protect the commercial misappropriation of a likeness without consent. Furthermore, the court found a probable, imminent, and irreparable injury because continued distribution of the game, even with many copies already sold, would exacerbate the existing harm and create new injuries. The injunction did not constitute an unconstitutional prior restraint because the First Amendment provides no right to use an individual's likeness to promote a commercial product without consent, and a fact issue existed regarding the validity of Doe's consent. The injunction was within the trial court's territorial jurisdiction as it was directed at Texas corporations, ordering them to control their employees/agents. The court also held that the decision to allow Doe to proceed under a pseudonym was an unappealable interlocutory order, and even if appealable, it permitted full discovery of Doe's true name for investigation. Finally, the bond amount was not an abuse of discretion, as Topheavy failed to provide sufficient specific evidence of expected losses.
Analysis:
This case reinforces the principle that contracts with minors are inherently vulnerable and generally voidable, especially when the adult party fails to exercise reasonable diligence in verifying age, even in the face of some misrepresentation by the minor. It clarifies the limits of First Amendment protection, emphasizing that it does not shield commercial exploitation of an individual's likeness without valid consent. The ruling also illustrates that temporary injunctions are potent tools to preserve the status quo and prevent ongoing irreparable harm, even if some injury has already occurred, and that such orders can effectively bind parties within the court's jurisdiction regarding actions outside that jurisdiction.
