Woman Sues Chipotle for $2.2 Billion over Unauthorized Photo
A California woman is suing the Chipotle restaurant chain for $2.2 billion (yes, billion — not million) for the unauthorized use of her photo in marketing materials.
As Fortune reports, a photographer took a picture of Leah Caldwell in a mostly-empty Denver area Chipotle in 2006. He offered her a release form to sign but she refused.
Eight years later, in 2014, Caldwell was shocked to see her picture at an Orlando Chipotle and in other California outlets of the chain.
In the lawsuit she filed in December, Caldwell claimed that the photos had been altered to add "textures" to her hair, people in the background, and bottles in the foreground. She claimed that the bottles "put her in a false light," associating her with consuming alcoholic beverages.
The complaint seeks actual damages of $750, and damages for profits from the unauthorized use of the photo of $2.2 billion. The profits are the amount that Chipotle earned from 2006 through 2015.
Caldwell is representing herself in the case. In addition to Chipotle and its CEO, she's also suing the photographer.
Caldwell is claiming that the use of her photo is a violation of California Civil Code 3344. This provides (in part):
Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages.
The California law only applies to a photo in which the person is "readily identifiable." Pictures of people in crowds, such as at sporting events, don't violate the law as long as individuals aren't singled out.
The law also doesn't apply to the use of a person's image “in connection with any news, public affairs, or sports broadcast or account, or any political campaign."
California courts use a three-part test to determine whether there's been a violation of the law:
- Was there a "knowing" use of the plaintiff's identify?
- Was the use for advertising purposes?
- Was there a direct connection between the use of the identity and a commercial purpose?
In addition to the publicity right under the statute, courts have also found a common-law right that's even broader.
For example, in a case involving a robot that looked like game show hostess Vanna White, the court found a common-law tort even though the use of the image didn't violate the statute.
It's very unlikely that Caldwell will recover anywhere near the amount she's asking for. However, this lawsuit is a reminder that it's important for businesses to be very careful about the use of photographs in advertising — including getting signed release forms from the people depicted.