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Georgia high court to hear ‘Girls Gone Wild’ case

Published: Monday, Nov. 5, 2012 8:55 a.m. CST

(MCT) — ATLANTA — Fourteen-year-old Lindsey Boyd was walking down the strip in Panama City, Fla., when two men, one holding a video camera, asked her to expose her breasts.

She complied and was compensated, as were many who flashed their breasts during spring break in 2000, with a cheap beaded necklace.

Video of the Powder Springs, Ga., middle schooler was sold for the “Girls Gone Wild, College Girls Exposed” series. Not only would a 5-second clip of Lindsey exposing herself be on the video, a photo of her baring her breasts would be on the cover of the DVD and displayed in commercials in a national advertising campaign. (On the cover, Lindsey’s breasts were blocked out with the instructions “Get Educated!”)

On Monday, the Georgia Supreme Court will hear arguments on whether Lindsey, who is now 26-year-old Lindsey Bullard of Cartersville, Ga., can sue the production companies that bought the video of her and put it in the “Girls Gone Wild” video. Bullard is seeking unspecified damages from the companies, saying they misappropriated her image for commercial purposes.

The case could set an important precedent for the protection of minors whose images are captured and then distributed across the digital world.

“The expectation of privacy has changed significantly in the digital age,” said Atlanta lawyer Gerry Weber, an expert on First Amendment law. “Everybody’s got a camera phone, and people are photographing and videotaping each other in public places all the time. Once the image is captured, the possibility of it being widely distributed can certainly happen, particularly if it’s provocative.” A key issue in the case, Weber said, is whether a minor has the legal capacity to consent to being photographed.

What happened in 2000, Bullard said last week, was a poor decision made in the moment by a teenager who had no clue what could happen next.

“What they did to me — using my image as advertisement — was wrong,” she said. “They did not have my consent. It was exploitation. If I would have known that the whole world was going to see it I definitely would have thought more about it and would not have done it. … There should be laws against it to protect others from this.” Atlanta lawyer Scott Carr, who represents the production companies, MRA Holding Inc. and Mantra Films Inc., declined to comment.

In a court filing, Carr said Bullard “placed no restrictions — indeed, never expressed any concern for — how the image of her exposing her breasts would be used.” The video “admittedly voluntary public conduct,” the filing said. “Now that spring break is over, (Bullard) has had second thoughts about her decision to expose her breasts for the video camera, but that choice was hers alone.” Bullard said that by the time she got to high school, fellow students, teachers and coaches had seen her photo in the “Girls Gone Wild” advertising campaign.

“It didn’t make it easy going to school — it was pretty rough, in fact,” said Bullard, a hairstylist who is married with a 3-week-old daughter. “I was pinpointed as a bad girl, as the problem girl.” Bullard’s suit, filed in 2004, has been overseen by Chief U.S. District Judge Julie Carnes in Atlanta.

In an Aug. 27 order, Carnes said she could not decide whether the case should go to trial. She asked the Georgia Supreme Court to give her some answers.

“Unfortunately, the very scant Georgia law on this subject provides no clear answer as to whether (Bullard) has a viable claim,” Carnes wrote. “… It is not at all clear that the law has caught up with this kind of vulgar exploitation of a young girl.” Among the questions Carnes wants the state Supreme Court to answer: Can Bullard’s consent to being videotaped be rendered invalid because she was a minor at the time? In the order, Carnes also made it clear what she thinks of the entire matter.

“That (Bullard) behaved foolishly and recklessly by baring herself to a stranger with a camera is an obvious fact,” Carnes wrote. “Yet, fourteen-year-old middle-schoolers sometimes do stupid things, with little thought for future consequences.” Carnes recognized that Bullard made no request to “be compensated for her momentary lack of common sense.” The video companies, Carnes said, “exploited that momentary foolishness for their own commercial gain, with no concern for the humiliation that could befall (Bullard) when her image was placed on the cover of their video.”

Whether Bullard has a claim, Carnes wrote, likely depends on whether the video companies violated her right to privacy.

More than a century ago, the Georgia Supreme Court became the first court of its kind to recognize an enforceable right to privacy — and it did so 60 years before the U.S. Supreme Court arrived at a similar conclusion in a ruling that lifted a ban on birth control.

In 1905, the Georgia Supreme Court said Paolo Pavesich could sue New England Mutual Life Insurance for using a photo of him, without his knowledge or consent, in an ad that ran in The Atlanta Constitution.

Carnes said she could find only two state Supreme Court decisions since then that even remotely bear on the issues raised by Bullard.

In 1966, the court ruled in favor of an exotic dancer whose photo was used, without her consent, by the Atlanta Playboy Club in a magazine ad. Two years later, the court ruled in favor of Thelma “Butterfly” McQueen, who played the role of Prissy in “Gone With the Wind,” after a Stone Mountain company failed to pay her for her role in a home movie and for memorabilia it sold from that film.

But neither case involves a 14-year-old girl who agreed to raise her top to a cameraman but never wanted the public exposure brought by her cover-girl status on a video package, Carnes said.

Bullard’s lawyer, Jeff Banks, said he hopes the state Supreme Court gives Carnes the answers that allow the case to go to trial.

“Lindsey was ridiculed and harassed by students and teachers at her high school,” Banks said. “A child who’s 14 could not understand the possible ramifications of flashing her breasts.”

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