In his play "Othello," Shakespeare wrote "Who steals my purse, steals trash - but he that filches from me my good name robs me of that which not enriches him and makes me poor indeed."
In the Bard's day, one's good name and reputation may have been priceless, but have standards eroded in our modern world of YouTube and reality TV, when seemingly everyone wants his 15 minutes of fame?
For decades, it's been well-settled that celebrities like actors and athletes have a commercial value associated with their names and likenesses, but a new lawsuit in Houston seeks to answer the question of what an average person's name is worth.
Kristen Syvette Wimberly, age 25, led a fairly normal existence, until friends and acquaintances started asking her about her sideline as a porn star. Stung by the insinuations, Wimberly did a little digging and learned that a former high school classmate, Lara Madden, had embarked on a career in the adult film industry - using "Syvette Wimberly" as her stage name. Madden apparently appeared in at least 13 X-rated films between 2004 and 2005 (the names of which can't be printed in a family publication), all under the name of her former classmate and friend from Kingwood High School.
Citing the "humiliation, embarrassment, loss of enjoyment of life, emotional distress, mental anguish, and anxiety," the real Ms. Wimberly sued her porn star doppelganger and the company that made and distributed her films, Vivid Entertainment Group, in Harris County District Court for invasion of privacy, negligence, and intentional infliction of emotional distress. In addition to seeking unspecified money damages, Ms. Wimberly wants an injunction against Lara Madden and the pornographic film company from continuing to use her name in the adult entertainment industry or in any other business.
Although Ms. Wimberly maintains in her lawsuit that the two young women were once friends but that the friendship "ended due to conflict" and that they lost touch after high school, Ms. Madden denies misappropriating the name out of spite.
In an interview with The Smoking Gun, Madden admitted using the name but only because she thought it was "really cool." Her lawyer, Kent Schaffer, stated in an interview with the Associated Press that "There is no bad blood between them-Lara never meant to harm this other girl."
Schaffer, who also said that Madden no longer makes pornographic films and will readily agree to stop using the name "Syvette Wimberly", speculated that the lawsuit will never stand up in court.
Schaffer may have a point. While celebrities have certain publicity rights to their names - actress Katie Holmes has threatened to sue a porn star using the name "Katee Holmes", and singer Mariah Carey has taken legal action against porn star and one time California gubernatorial candidate Mary Carey - an ordinary person has a much tougher legal road ahead of her.
The Texas invasion of privacy law that covers misappropriation of someone's name or likeness doesn't actually protect the name or likeness itself; instead, it protects the value associated with that name or likeness. In order to recover, the plaintiff will have to show that the defendant appropriated her name or likeness for the value associated with it (which could include reputation, prestige, or social standing); that the defendant received some advantage or benefit from the appropriation; and that the plaintiff suffered damages a result.
Texas law doesn't recognize a cause of action for invading someone's privacy by placing them in a "false light", or a false position in the public eye. Without a showing that her name had some sort of independent value, the real Syvette Wimberly may be out of luck. As Houston trial attorney Joel Androphy points out, "Your name is not private….We don't have intellectual property rights in our name."
Wimberly's attorney, Micajah Boatright, maintains that while "We're not out looking for millions of dollars," jurors are certainly going to sympathize with his client, especially in today's world where the question of one's identity is closely linked not only with one's reputation but with safety issues as well.
But, will it be enough? Even if Madden deliberately chose her stage name knowing it might embarrass her former high school friend, the standard for liability for intentional infliction of emotional distress is pretty daunting. The conduct has to be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency," according to the caselaw.
If past cases are any yardstick, Ms. Wimberly and her attorney have their work cut out for them. In one federal lawsuit, the U.S. Court of Appeals for the 5th Circuit ruled that a former Texas police officer could not sue author Kim Wozencraft for depicting him in her book "Rush" (later made into a motion picture). Other cases have brought similarly discouraging results.
The bottom line - do what you can to protect your good name, since the law may not provide as much help as you thought it would.