LOS ANGELES—A Los Angeles court has set significant legal precedent in adult star Vicky Vette's ongoing battle against online dating giant AdultFriendFinder (the world's largest online sex & swingers dating website) and Danni.com, both owned by Penthouse—a ruling which strips website owners of absolute immunity from California "Right of Publicity" claims.
Vette's lawsuit charges that AdultFriendFinder wrongfully used her likeness on thousands of worldwide banners, advertisements and affiliate websites, identifying her as "Groovy232" looking for a "date." Vette asserts that AdultFriendFinder is actively using pictures of a number of adult stars without their consent, knowledge or payment, to "bait" or lure members of the general public into joining dating websites. AdultFriendFinder argued that it had obtained the pictures from Danni.com and that it was immune from Vette's Right of Publicity-related claims by virtue of section 230 of the Communications Decency Act (CDA) as interpreted by the Ninth Circuit Federal Court of Appeals decision in Perfect 10 v. CCBill. Section 230 of the CDA has been described in Wikipedia as "landmark" internet legislation crafted in an effort to immunize website operators from liability.
Los Angeles County Superior Judge Jan Levine has now issued the first California State Court decision which disagrees with Perfect 10 v. CCBill, holding that the CDA does not immunize website operators from state law rights of publicity claims. In making her ruling, Judge Levine indicated she did not believe the Ninth Circuit in Perfect 10 had interpreted the CDA properly. She agreed with the majority of other rulings outside California which criticize Perfect 10 and concluded that the plain language of the CDA does not bar federal or state intellectual property claims. This is the second significant ruling in Vette's favor thus far. In March, the Court denied a Motion by AdultFriendFinder to dismiss Vette's case completely because of a supposed binding model release.
"California courts have considered the Immunity Clause in Section 230 of the Communications Decency Act ('Section 230'), as well as the statutory exemptions from that immunity (47 U.S.C. Section 230(c)(1), (e))," wrote Judge Levine in her order dated June 27. "However, there is no California decision that specifically addresses whether Section 230(e)(2) exempts a claim arising out of a state law right of publicity from the broad Section 230 immunity. ... Where there are no California cases directly on point, the Court can look to federal precedent. Under the prevailing view, the opinions of courts within the Ninth Circuit carry no more weight than those of other lower federal courts. ... This Court may make 'an independent determination of federal law.' The Court finds the reasoning in Doe v. FriendFinder Network Inc. persuasive, and thus grants Plaintiff's Motion." [Citations removed.]
Vicky Vette stated, "I am amazed this relatively small case has ballooned into court rulings other entertainment attorneys may be citing as legal authority or 'precedent.' This case was settled nine months ago but AdultFriendFinder for some reason backed out of the deal. They since have thrown everything but the kitchen sink … no, wait … they have thrown the fridge, the microwave and the sink at defending this case. Win or lose, there is something fundamentally wrong with a company using my image all over the world as 'bait' to unsuspecting members of the general public without even letting me know. There are millions of pictures of girls in the world they could have used in advertising; why mine?"
Vette is represented by Beverly Hills attorney and Adjunct Professor of Law Stephen Kernan, who added, "I took this case because I believed it had the possibility of making law in California on the intellectual property exception to CDA Section 230. The more courts that hold that the 9th Circuit erred when it decided Perfect 10 v. CCBill, the more likely the 9th Circuit will either change that ruling or be ultimately overruled by the United States Supreme Court."
Vette's case is anticipated to proceed to trial later this year or early in 2013. FriendFinder announced earlier this year that its CEO, Marc Bell, was stepping down on the heels of a $10 million loss for the 4th quarter of 2011. The company has been trying to go public since May 2011.