An attractive young model and two sets of bungling attorneys – sounds like the makings of a TV sitcom; but in actuality, it was a comedy played out in a courtroom. Ting Ji v. Bose Corporation and White/Packert Inc.
Ms. Ji is as noted above, a model. White/Packert is a photographer. In 2004, Ms. Ji participated in a photo shoot, for which she was paid the princessly sum of $1,000. After the shoot, she executed two documents: (1) her modeling agency’s voucher which included a limited release that prohibited use of the photos for “packages, point of purchase [and] displays;” and (2) White’s release which assigned the “absolute right and permission to … use” the photos “for any purpose whatsoever.” The alert reader – we trust that ALL our readers are alert – will note that there is a clear conflict as to the scope of rights conveyed by these two documents.
White, professing a belief that it had secured a “total buy-out” of rights to Ms. Ji’s images, conveyed them to Bose, which used one of them on the packaging and point-of-purchase displays for its 3-2-1 Series II DVD home entertainment system. Upon discovering this, Ms. Ji sued Bose, asserting claims for false endorsement, right-to-publicity, invasion of privacy and unfair trade practice. Bose, in turn, asserted claims against White for breach of contract, misrepresentation, indemnification and contribution.
The photograph in question showed Ms. Ji seated on a couch, partially embracing a male model – who never sued anyone – as they watched television. “The photo was taken from behind the couch, exposing the back of Ji’s head and little of her face; as a result, Ji is barely recognizable.” Nevertheless, Ms. Ji sought damages of $2 million. The jury returned a verdict in her favor, awarding damages of $10,000. Both sides appealed.
Here is where we get to the bungling. Ms. Ji, through her attorneys, had argued that she needed “financial information from Bose, including sales data concerning its 321 System, on the ground that she needed that information to prove [her] damages …” Bose claimed the information regarding its sales was “sensitive and closely guarded” and refused to produce it. The Court ordered Bose to produce figures on unit sales, but not dollar volume. Ms. Ji also requested a jury instruction that a “royalty” could be established “by the total amount of the [sic] Bose’s profits resulting from its exploitation of [her] image.” The Court refused to give this instruction.
The appellate court rejected both grounds of Ms. Ji’s appeal. “… Ji has failed to submit reliable indicia that the Florida Supreme Court would consider sales data as necessary components of a reasonable royalty … [and] if we had any doubts about this conclusion (we do not), Ji’s failure to show prejudice resulting from the district court’s order would remove them.” As to the refused jury instruction, the appellate court held that Ji’s counsel’s failure to timely object constituted a waiver of that issue. Oops!
Bose previously had moved for summary judgment on the grounds that the release, which Ms. Ji had signed, controlled and “through it Ji had relinquished all rights to her images.” The Court had denied this motion.
The appellate court affirmed the trial court’s denial of the motion, “… a disappointed party must restate its objection in a motion for judgment as a matter of law (‘JMOL’),” something Bose’s attorneys had somehow omitted to do. Oops!
Interestingly, both parties had agreed that Ji’s claims “hinged on” a question of contract interpretation; namely, whether the voucher or the release controlled Bose’s rights with respect to the photographs taken by White. The jury never decided this particular question in arriving at their verdict. Both sides raised this undecided issue on appeal. The appellate court did not “reach the merits” of these arguments, “because neither Bose nor White properly preserved it in a motion for judgment as a matter of law.” Oops, again!
So, Ms. Ji gets ten grand for a picture of the back of her head and the attorneys all go home with egg on their faces.
THE LESSON TO BE LEARNED: Make whatever motions are required to preserve your right to appeal.