The United States District Court for Maryland has recently (October 18, 2006) granted summary judgment against a woman who sued Easyrider magazine for invasion of privacy after a photo of her flashing her breasts at a BBQ attended by one hundred bikers appeared in the magazine. The claim in Barnhart v. Paisano Publications was based on three traditional bases of "invasion of privacy":
- Intrusion upon seclusion - Not much seclusion or expectation of privacy when you pull up your shirt at a BYOB biker BBQ.
- False light invasion of privacy - The depiction was accurate and did not falsely suggest that the plaintiff was the type of person who would consent to having topless pictures published in Easyrider.
- Appropriation of personality - The plaintiff is not famous, is not a professional model and there is nothing particularly of value associated with her likeness. Also, it was done in public. (Maybe I'm being a bit too Canadian, but I think I'd rather not tell anyone their breasts have no commercial value.)
"Barnhart’s display of her breasts “cannot reasonably be said to have constituted a private act,” Motz wrote. “She exposed herself at an outdoor fundraising event open to any members of the public who purchased a ticket.”
Her claim that the image presented her in a false light also failed because she never claimed that the picture distorted “her true appearance,” but only that it created the impression she was the sort of person who would consent to posing topless for a magazine, Motz ruled.
Finally, Motz held that Barnhart’s claim for appropriation of her likeness failed because her image has no commercial value. Maryland courts have held that someone whose picture is taken in a public place at a newsworthy event does not have an appropriation claim, the judge noted."