IN THE SUPREME COURT OF VIRGINIA
at Richmond
No. 961837
RAM AVRAHAMI,
Defendant-Complainant-Appellant,
v.
U.S. NEWS & WORLD REPORT, INC.,
Plaintiff-Respondent-Appellee.
On appeal from the Circuit Court of Arlington County
William T. Newman, Jr., Circuit Judge
PETITION FOR APPEAL
James Bruce Davis (VSB #13654)
Bean, Kinney & Korman, P.C.
2000 North 14th Street, Suite 100
Arlington, Virginia 22201
(703) 525-4000
Counsel for Appellant
Ram Avrahami
SUBJECT INDEX
ASSIGNMENTS OF ERROR . . . . . . . . . . . . . . . . . . . . . 1
QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . 4
NATURE OF THE CASE AND PROCEEDINGS BELOW . . . . . . . . . . . 5
THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARGUMENT, PRINCIPLES OF LAW
AND DISCUSSION OF AUTHORITIES. . . . . . . . . . . . . . . . . 10
I. The unauthorized sale, exchange, or rental of a person's
name as part of a mailing list violates the Privacy Act's
prohibition on using a person's name for the purposes of
trade.. . . . . . . . . . . . . . . . . . . . . . . . . . 10
II. The inclusion of a person's name in a mailing list rental
constitutes a use of his name for purposes of trade.. . . 12
III. The unauthorized rental of a persons's name violates the
Privacy Act even if the person's name is not used to
promote an unrelated product or service.. . . . . . . . . 13
IV. The unauthorized rental of a person's name violates the
Privacy Act even if the name is not "publicly" used.. . . 14
V. The "incidental use doctrine," designed to protect
freedom of expression, has no application to mailing list
rentals.. . . . . . . . . . . . . . . . . . . . . . . . . 15
VI. Rental of names on a mailing list in violation of the
Privacy Act constitutes the tort of conversion as to the
owners of those names.. . . . . . . . . . . . . . . . . . 18
VII. A person need not be "deprived of possession" of his name
in order to have a cause of action under the Privacy
Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
VIII. The Circuit Court erred in finding that individual names
contribute no value to mailing lists offered for
rental.. . . . . . . . . . . . . . . . . . . . . . . . . 19
IX. Ram Avrahami has a property right in his name, as
correctly spelled or as spelled Ram Avrahani. . . . . . . 20
X. U.S. News was not entitled to a declaratory judgment that
it could rent Ram Avrahami's name without his consent in
connection with rentals of its subscriber list. . . . . . 22
XI. The Mail Preference Service established by the Direct
Marketing Association is no substitute for the "written
consent" required by the Privacy Act. . . . . . . . . . . 22
XII. Mr. Avrahami was not guilty of unclean hands.. . . . . . 23
XIII. The Circuit Court erred in ruling that an injunction is
inappropriate in this case because no showing of
"irreparable harm" was made and because an injunction
would result in harm to U.S. News that is greater than
the benefit that would result to Mr. Avrahami. . . . . . 24
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 25
CERTIFICATE OF COUNSEL . . . . . . . . . . . . . . . . . . . . 26
TABLE OF AUTHORITIES
STATUTES
Va. Code Ann. 8.01-40 (Michie 1996). . . . . . . . .1, 5, 6, 10
CASES
Arrington v. New York Times Co.,
434 N.E.2d 1319 (N.Y. 1982). . . . . . . . . . . . . . 14, 16, 17
Barrows v. Rosansky,
489 N.Y.S.2d 481 (A.D. Dept. 1 1985) . . . . . . . . . . . . . 14
Canessa v. J.I. Kislak, Inc.,
235 A.2d 62 (N.J. Super. 1967) . . . . . . . . . . . . . . . . 11
Delan v. CBS, Inc.,
458 N.Y.S.2d 608 (App. Div. 1983). . . . . . . . . . . . . . . 17
Holmes v. Underwood,
233 N.Y.S. 153 (A.D. Dept. 1 1929) . . . . . . . . . . . . . . 14
Lavery v. Automation Management Corp.,
234 Va. 145, 360 S.E.2d 336 (1987) . . . . . . . . 10, 11, 15, 20
Mendonsa v. Time, Inc.,
678 F.Supp. 967 (D.R.I. 1988). . . . . . . . . . . . . . . . . 14
Orsini v. Eastern Wine Corporation,
73 N.Y.S.2d 426 (Sup. Ct. 1947). . . . . . . . . . . . . . . . 21
People ex rel Maggio v. Charles Scribner's Sons,
130 N.Y.S.2d 514 (City Mag. Ct. 1954). . . . . . . . . . . . . 21
Robertson v. Rochester Folding Box Co.,
171 N.Y. 538, 64 N.E. 442 (1902) . . . . . . . . . . . . . . . 11
Spahn v. Julian Messner, Inc.,
221 N.E.2d 543 (N.Y. 1966) . . . . . . . . . . . . 11, 14, 16, 21
Stillman v. Paramount Pictures Corp.,
147 N.Y.S.2d 504 (Sup. Ct., Spec. Term). . . . . . . . . . . . 17
Time, Inc. v. Hill,
385 U.S. 374 (1967). . . . . . . . . . . . . . . . . . . . . . 11
Town & Country Properties v. Riggins,
249 Va. 387, 457 S.E.2d 356 (1995) . . . . . . . . .11, 12, 18-20
IN THE SUPREME COURT OF VIRGINIA
_________________________________
No. _____
_________________________________
RAM AVRAHAMI,
Defendant-Complainant-Appellant,
v.
U.S. NEWS & WORLD REPORT, INC.,
Plaintiff-Respondent-Appellee.
________________________________
Appeal from the Circuit Court of Arlington County
William T. Newman, Jr., Circuit Judge
_______________________________
PETITION FOR APPEAL
_______________________________
ASSIGNMENTS OF ERROR
1. The Circuit Court erred in ruling that the exchange, sale, or
rental of mailing lists, which are comprised of individual
names and addresses, does not violate Virginia Code 8.01-40
(the "Privacy Act") and that the exchange of Mr. Avrahami's
name as part of a mailing list did not invade his property
right in his name. (Conclusion #2) <1>
2. The Circuit Court erred in ruling that the inclusion of an
individual name in a mailing list rental constitutes neither
a use for an advertising purpose nor a use for the purposes of
trade, as defined by the Privacy Act. (Conclusion #4)
3. The Circuit Court erred to the extent it concluded that Mr.
Avrahami was required to prove use of his name "in the
promotion of an actual product or service" in order to recover
under the "purposes of trade" branch of the Privacy Act.
(Conclusion #6)
4. The Circuit Court erred in ruling that a name must be used
"publicly" in order to constitute a violation of the "purposes
of trade" branch of the Privacy Act. (Conclusion #3)
5. The Circuit Court erred in ruling that the inclusion of a name
as part of a larger mailing list -- where no relationship
exists between the individual name and the exchange of the
list -- is "too fleeting and incidental" to be actionable
under the Privacy Act. (Conclusion #7)
6. The Circuit Court erred in ruling that the exchange, rental,
or sale of a mailing list, which contains individual names,
does not constitute conversion of each one of the names
contained on the mailing lists. (Conclusion #8)
7. The Circuit Court erred in ruling that a plaintiff must prove
that he was deprived of possession of his name in order to
establish a violation of the Privacy Act. (Conclusion #8)
8. The Circuit Court erred in finding that there is no value
associated with or assigned to an individual name on a mailing
list and that the value of a list comes not from the
individual names contained on the list, but entirely from the
list's association with a particular organization or group.
(Finding #17) <2>
9. The Circuit Court erred in ruling that Ram Avrahami has no
property right in his name, either as correctly spelled or as
misspelled in the circumstances of this case, and that U.S.
News & World Report, Inc. therefore did not violate the
Privacy Act or commit common law conversion by including the
name Ram Avrahani as part of a mailing list exchange.
(Conclusion #1)
10. The Circuit Court erred in granting U.S. News & World Report,
Inc. a Declaratory Judgment that U.S. News & World Report,
Inc. is entitled to rent Mr. Avrahami's name without his
consent. (Order, dated June 13, 1996, p. 21)
11. The Circuit Court erred in ruling that Mr. Avrahami was
"precluded from recovering damages or obtaining an injunction
because he failed to use reasonable means to have his name
removed from mailing lists, he affirmatively created this
litigation by using a false name, and failed to register this
false name with the [Mail Preference Service]." (Conclusion
#9)
12. The Circuit Court erred in ruling that Mr. Avrahami had
unclean hands, and therefore was precluded from equitable
relief. (Conclusion #10)
13. The Circuit Court erred in ruling that an injunction is
inappropriate in this case because no showing of "irreparable
harm" was made and because an injunction would result in harm
to U.S. News & World Report, Inc. that is greater than the
benefit that would result to Mr. Avrahami. (Conclusion #11)
QUESTIONS PRESENTED
Whether the unauthorized rental or exchange of a person's name
as part of a mailing list violates the Privacy Act. (This question
pertains to Assignment of Error No. 1.)
Whether the inclusion of a person's name in a mailing list
rental constitutes a use of his name for "the purposes of trade."
(This question pertains to Assignment of Error No. 2.)
Whether a person's name must be used "to promote a product or
service" in order for the unauthorized rental of his name to
violate the Privacy Act. (This question pertains to Assignment of
Error No. 3.)
Whether a person's name must be used "publicly" in order for
the unauthorized rental of his name to violate the Privacy Act.
(This question pertains to Assignment of Error No. 4.)
Whether the "incidental use doctrine," designed to protect
freedom of expression, applies to rentals or exchanges of
subscriber names for purely commercial purposes. (This question
pertains to Assignment of Error No. 5.)
Whether the rental or exchange of names on a mailing list in
violation of the Privacy Act constitutes the tort of conversion as
to the owners of those names. (This question pertains to
Assignment of Error No. 6.)
Whether a person must be "deprived of possession" of his name
in order to have a cause of action under the Privacy Act? (This
question pertains to Assignment of Error No. 7.)
Whether individual names contribute value to mailing lists
offered for rental. (This question pertains to Assignment of Error
No. 8.)
Whether Ram Avrahami has a property right in his name and, in
the circumstances of this case, the variation "Ram Avrahani."
(This question pertains to Assignment of Error No. 9.)
Whether the Circuit Court erred in declaring that U.S. News &
World Report, Inc. is entitled to rent or exchange Ram Avrahami's
name without his consent. (This question pertains to Assignment of
Error No. 10.)
Whether the Mail Preference Service established by the Direct
Marketing Association substitutes for the "written consent"
required by the Privacy Act. (This question pertains to Assignment
of Error No. 11.)
Whether Mr. Avrahami's intentional misspelling of his name as
Avrahani and his failure to register this version of his name with
the Mail Preference Service rendered him guilty of "unclean hands."
(This question pertains to Assignment of Error No. 12.)
Whether considerations of relative harm provided a valid basis
for denying an injunction against further rental of Mr. Avrahami's
name. (This question pertains to Assignment of Error No. 13.)
NATURE OF THE CASE AND PROCEEDINGS BELOW
Ram Avrahami's name is his property. Virginia Code 8.01-40,
known as the Privacy Act, prohibits anyone else from using Mr.
Avrahami's name for "purposes of trade" without his written
consent.
U.S. News & World Report, Inc. ("U.S. News"), publisher of a
news magazine of the same name, regularly rents the names of its
subscribers, without their consent, to business and charitable
organizations. These organizations then send the subscribers
promotional materials, by mail, advertising goods and services or
seeking charitable contributions.
Mr. Avrahami is a subscriber to U.S. News. This appeal is a
case of first impression testing whether U.S. News' rental of the
names of its Virginia subscribers, without their consent, violates
the Privacy Act. This Petition will show that the Privacy Act
protects Mr. Avrahami and other Virginia residents from U.S. News'
commercial exploitation of their names in the manner described.
This appeal arises out of two cases that were consolidated for
trial before the Circuit Court of Arlington County. In U.S. News
& World Report, Inc. v. Avrahami, At Law No. 95-1318, U.S. News
obtained a declaratory judgment that "that the sale, rental, or
exchange of mailing lists does not violate or state a claim under
Virginia Code 8.01-40 or common law conversion." In Avrahami v.
U.S. News & World Report, Inc., Chancery No. 96-203, the Court
dismissed Mr. Avrahami's claims for injunctive relief and damages
against U.S. News for the unauthorized rental of his name.
The Circuit Court tried both cases without a jury on June 6,
1996, heard the oral arguments of counsel on June 11, 1996, and
rendered its final Order on June 13, 1996. From this Order, Mr.
Avrahami appeals.
THE FACTS
U.S. News publishes U.S. News & World Report, a weekly news
magazine. (Tr. 115) <3> One of the ways that U.S. News sells its
magazine is through subscriptions.
U.S. News maintains a mailing list of its subscribers (Tr.
165), and regards that list as its property. (Tr. 117) The list
consists of its subscribers' names and addresses. (Tr. 132)
U.S. News regularly rents or exchanges portions of its mailing
list to other business organizations and to charities. (Tr. 165)
The trial court made the following findings, among others,
regarding U.S. News' practice of renting its subscribers' names:
U.S. News engages the services of a list manager,
Mal Dunn Associates ("the List Manager"), to promote the
rental and exchange of the subscriber list. U.S. News'
standard rental rate is $80.00 per 1000 names. The List
Manager collects rental fees for U.S. News. In exchange
for these services the List Manager receives commissions
on rentals collected. (Finding 34)
A "renter" of names from either list offered by U.S.
News can order various "selects." A select is a sublist
that categorizes U.S. News' subscribers according to sex,
income, occupation, adult age, children's sex, children's
age, number of children, mail order buyers, state, zip
code and various other criteria. Selects are available
at an extra charge per name according to a rate schedule
published by the List Manager. (Finding 35)
Usually, U.S. News rents or exchanges its subscriber
list on a one-time use basis. This means that the renter
may use the names for only one promotion. A renter who
rents names from U.S. News is required to destroy the
list after the renter uses the list for a mailing.
(Finding 36)
To assure that a renter has used U.S. News' list
only once and has used only the approved promotional
materials, U.S. News "seeds" or "salts" each list that it
rents with names of various U.S. News employees. The
salt names are often deliberately misspelled so that U.S.
News can determine whether a renter used the rented names
more than once. (Finding 38)
U.S. News' rental offerings are summarized in a tariff
published by the List Manager. (Tr. 181) A copy of that tariff is
reproduced in the Appendix to this Petition. The tariff provides,
among other information:
* U.S. News standard rental rates ($80.00/1000 names for rentals
to businesses; and $65.00/1000 names for rentals to
charities);
* the "selects" available (e.g., subscribers with children,
subscribers living in Virginia, etc.); and
* the extra charge for each "select" (e.g., an additional $5.00
per 1000 names for a list of Virginia subscribers). <4>
U.S. News does not ask its subscribers for permission to rent
or exchange their names (Finding 42), nor does U.S. News keep a
record of the names that it rents. (Finding 41)
In February, 1995, Mr. Avrahami received a mail solicitation
to subscribe to U.S. News & World Report. He accepted U.S. News'
offer and, on March 21, 1995, ordered a subscription. (Tr. 61) In
accepting the offer, Mr. Avrahami amended the pre-printed order
form by changing the spelling of his last name from Avrahami to
Avrahani. (Id.)
Mr. Avrahami never previously or subsequently spelled his name
Avrahani. (Finding 29) He introduced the misspelling so that he
could identify U.S. News as the source of any mail solicitations he
received with his name misspelled in that way. (Finding 28) This
is the same technique that U.S. News uses to verify that those who
rent the U.S. News' subscriber list do not use that list for more
than one promotion. (Finding 38; Tr. 178)
After subscribing to U.S. News, Mr. Avrahami soon received a
mail solicitation from the Smithsonian Magazine, addressed to his
home, with his name misspelled Avrahani. (Tr. 97) U.S. News
admitted that, on or about April 12, 1995, U.S. News shipped a
mailing list of 100,000 names and addresses of its subscribers to
the Smithsonian Magazine, and that the list included the name "Ram
Avrahani." (Amended Motion for Declaratory Judgment, 22). The
shipment was made under an agreement by which U.S. News and the
Smithsonian Magazine exchanged the names of each other's
subscribers. (Amended Motion for Declaratory Judgment, 21).
Subsequently, Mr. Avrahami received solicitations from other
organizations -- the American Heart Association and the Gospel
Mission -- with his name identically misspelled. (Tr. 98-100) The
trial court found that the American Heart Association and the
Gospel Mission had rented U.S. News' subscriber list shortly before
Mr. Avrahami's receipt of solicitations from those organizations.
(Findings 46 - 51)
At no time did Mr. Avrahami consent that U.S. News could rent
his name to other organizations or exchange his name with other
organizations. (Finding 31; Tr. 201)
The Argument that follows will show that U.S. News violates
the Privacy Act when it rents or exchanges its subscribers' names
without their consent. Therefore, the Circuit Court erred in
issuing a declaratory judgment authorizing such rentals and
exchanges. The Circuit Court erred further by denying the relief
to which Mr. Avrahami is entitled under the Privacy Act.
ARGUMENT, PRINCIPLES OF LAW
AND DISCUSSION OF AUTHORITIES
I. The unauthorized sale, exchange, or rental of a person's name
as part of a mailing list violates the Privacy Act's
prohibition on using a person's name for the purposes of
trade.
By Virginia Code 8.01-40 (A), the General Assembly
established and protected a person's property right in his own
name. The statute provides:
Any person whose name, portrait or picture is used
without having first obtained the written consent of such
person ..., for advertising purposes or for the purposes
of trade, such persons may maintain a suit in equity
against such person, firm or corporation so using such
person's name, portrait or picture to prevent and
restrain the use thereof; ...
Va. Code Ann. 8.01-40 (A) (Michie 1996).
This statute, known as the Privacy Act, "creates in an
individual a species of property right in their name and likeness."
Lavery v. Automation Management Corp., 234 Va. 145, 154, 360 S.E.2d
336, 342 (1987) (misappropriation of a person's name is subject to
5-year statute of limitations applicable to injuries to property).
"In Virginia, one holds a property interest in one's name and
likeness." Town & Country Properties v. Riggins, 249 Va. 387, 397,
457 S.E.2d 356, 364 (1995).
A claim under the Privacy Act has three elements: (1) another
person has used the plaintiff's "name, portrait or picture;" (2)
the use was for "advertising purposes or the purposes of trade;"
and (3) the plaintiff did not give "written consent" to that use.
A Virginia resident need not be a celebrity to prevent U.S.
News from exploiting his name, nor must he show that the pecuniary
benefit to U.S. News was substantial. "[H]owever little or much
plaintiff's likeness and name may be worth, [a] defendant who has
appropriated them for commercial benefit should be made to pay for
what he has taken, whatever it may be worth." Lavery, 234 Va. at
153, 360 S.E.2d at 341 (quoting Canessa v. J.I. Kislak, Inc., 235
A.2d 62, 75 (N.J. Super. 1967)). <5>
U.S. News' rental or exchange of its subscribers' names
undoubtedly constitutes a "use" of those names, and U.S. News does
not obtain its subscribers' consent to that use. Thus, Mr.
Avrahami plainly established the first and third elements of a
Privacy Act violation. The only significant legal issue in this
case relates to the second element of the Privacy Act -- whether
U.S. News' rental or exchange of its subscribers' names is for
"advertising purposes or the purposes of trade."
"Advertising purposes" and "purposes of trade" are "separate
and distinct statutory concepts." Riggins, 249 Va. at 387, 457
S.E.2d at 362. Therefore, the Privacy Act is violated if a
person's name is used, without his consent, for either purpose.
Here, we may readily show that U.S. News' rental and exchange of
its subscribers' names comes within the "purposes of trade" branch
of the Privacy Act.
U.S. News' objective when it rents its subscribers' names is
to earn money. U.S. News' objective when it exchanges its
subscribers' names is to receive value in kind -- the right to use
another organization's subscribers' names or members' names. U.S.
News employs a List Manager to promote this business so U.S. News
can earn more rentals and obtain more exchanges. These
transactions constitute trade in its purest form -- the exchange of
U.S. News' subscribers' names for money or other names.
Because Mr. Avrahami proved all three elements of a Privacy
Act violation, the trial court should have ruled that U.S. News'
unauthorized sale, rental or exchange of its subscribers' names
violates the Privacy Act and awarded appropriate relief.
II. The inclusion of a person's name in a mailing list rental
constitutes a use of his name for purposes of trade.
U.S. News rents its subscriber list at a standard rate of
$80.00 per 1000 names. A simple calculation shows that U.S. News
receives 8 cents each time it rents a subscriber's name as part of
a mailing list. Every name counts. By including a person's name
in a subscriber list rental, U.S. News earns rent. If U.S. News
did not include subscriber names on its subscriber list, no one
would rent it. Obviously, the purpose of including a name on a
subscriber list is to rent that name or to exchange it for a name
of comparable value. Plainly, this purpose is trade.
As further authority for this proposition, we incorporate our
arguments from Section I above.
III. The unauthorized rental of a persons's name violates the
Privacy Act even if the person's name is not used to promote
an unrelated product or service.
The Circuit Court's conclusion of law No. 6 might be construed
as holding that "promotion of an actual product or service" is
required in order for the unauthorized rental of a person's name to
violate the "purposes of trade" branch of the Privacy Act. If this
is what the Circuit Court intended to hold, the holding was
erroneous. Unlike the "advertising" branch of the Privacy Act, the
"purposes of trade" branch of the Privacy Act does not depend on
the use of a person's name or likeness to promote an unrelated
product or service.
The Privacy Act provides no textual support for such a
restriction on the "purposes of trade" branch. Because the goal of
advertising is to promote products and services, the General
Assembly undoubtedly contemplated promotions when it adopted the
"advertising" branch of the Privacy Act. Having dealt with
promotions under the "advertising" branch of the Privacy Act, the
General Assembly went on to adopt the "purposes of trade" branch.
Obviously, the intent of the "purposes of trade" branch was to
enlarge the Privacy Act to prohibit any unauthorized commercial
exploitation of a person's name or likeness. As the court held in
Spahn v. Julian Messner, Inc., 221 N.E.2d 543, 544 (N.Y. 1966)
(construing New York's Privacy Act), the "social desirability and
remedial nature" of the Privacy Act requires a "liberal
construction" of the phrase "for the purposes of trade."
Numerous cases have held that the unauthorized sale of a
person's photograph violates state privacy acts. Arrington v. New
York Times Co., 434 N.E.2d 1319 (N.Y. 1982); Barrows v. Rosansky,
489 N.Y.S.2d 481 (A.D. Dept. 1 1985); Holmes v. Underwood, 233
N.Y.S. 153 (A.D. Dept. 1 1929); Mendonsa v. Time, Inc., 678 F.Supp.
967 (D.R.I. 1988). In these cases, the photograph was not used to
promote an unrelated product or service; the photograph itself was
the product being sold.
This case is indistinguishable in any meaningful way from the
photograph cases. Under the Privacy Act, a person has a property
right not only in his likeness, but also in his name. Therefore,
if the Privacy Act prohibits the unauthorized sale of a person's
photograph, it likewise prohibits the unauthorized rental of his
name. U.S. News' rental of its subscribers' names constitutes a
use of those names for purposes of trade, not because the names
promote an unrelated product, but because the names themselves are
the product being rented.
IV. The unauthorized rental of a person's name violates the
Privacy Act even if the name is not "publicly" used.
The Circuit Court held, erroneously, that the Privacy Act
provides recourse only to persons whose names are "publicly" used
for purposes of trade, citing Lavery, 234 Va. 145, 360 S.E.2d 336
(1995). The Privacy Act contains no textual support for this
proposition; on the contrary, the Privacy Act requires the
plaintiff to prove only that his name was used for purposes of
trade and that such use was unauthorized.
Lavery itself provides no support for the proposition that a
name must be "publicly" used. In Lavery the plaintiff's name was
not used in a public manner, but rather was included in a proposal
for consulting services. Mr. Lavery's rights were violated not
because of any "public" use of his name, but rather because his
name was used, without his consent, to advance another person's
financial interests.
V. The "incidental use doctrine," designed to protect freedom of
expression, has no application to mailing list rentals.
The Privacy Act provides a remedy for any unauthorized use of
a person's name or likeness for purposes of trade; it contains no
exception for minimal violations. As this Court held in Lavery,
234 Va. at 153, 360 S.E.2d at 341, the value obtained by
misappropriating another's name is wholly immaterial to whether the
owner of the name may recover for the misappropriation.
The Circuit Court nevertheless ruled that the inclusion of one
name "as part of a larger mailing list" was "too fleeting and
incidental" to be actionable under the Privacy Act. In so ruling,
the Circuit Court misapplied the "incidental use doctrine," which
the New York courts developed to protect freedom of expression.
Under the "incidental use" doctrine, the publication of a
person's name in a book, newspaper or magazine generally cannot
give rise to a claim under a Privacy Act. Although mentioning a
person's name in a newspaper article may promote the sale of
newspapers, that use is regarded as "incidental" to the newspaper
business, and therefore outside the prohibition of a Privacy Act.
The rationale for the incidental use doctrine and similar
exceptions is that, "ever mindful that the written word or picture
is involved, courts have engrafted exceptions and restrictions onto
the statute to avoid any conflict with the free dissemination of
thoughts, ideas, newsworthy events, and matters of public
interest." Spahn, 221 N.E.2d at 544 - 545 (Judicially created
exceptions to Privacy Act were inapplicable to a fictionalized
biography of baseball pitcher Warren Spahn).
Arrington, 434 N.E.2d 1319 (N.Y. 1982) illustrates that the
constitutional exception to the Privacy Act depends on the context
in which a name or photograph is used. The court in Arrington held
that "a picture illustrating an article on a matter of public
interest is not considered use for the purposes of trade or
advertising within the prohibition of the statute ... unless it has
no real relationship to the article ... or unless the article is an
advertisement in disguise. ..." 434 N.E.2d at 1318. Based on
this principle, the court held that the New York Times had no
liability under the New York Privacy Act for publishing the
unauthorized photograph of a Afro-American man, Arrington, to
illustrate an article concerning the role of the expanding black
middle class in today's society. However, this exception to the
Privacy Act provided no protection to the photographer who took
Arrington's photograph and sold it to the New York Times. The
court held that photographer's sale of Arrington's image was for
purposes of the photographer's trade and thus was not incidental to
an expression protected by the First Amendment.
U.S. News is like the photographer in Arrington. Renting
subscribers' names is not incidental to reporting the news.
Although U.S. News must use names like William Clinton to report
current events, it need not use the names of everyday subscribers.
Plainly, U.S. News' rentals of its subscribers' names constitutes
a separate business.
No court decision has applied the "incidental use" doctrine to
a sale or rental of names for commercial gain. Instead, the
"incidental use" doctrine has been limited to situations in which
the use of the plaintiff's name or picture has been incidental to
protected expressions. The two cases cited by the Circuit Court
provide prime examples. Stillman v. Paramount Pictures Corp., 147
N.Y.S.2d 504 (Sup. Ct., Spec. Term), aff'd and modified on other
grounds, 153 N.Y.S.2d 190 (App. Div. 1956), aff'd, 184 N.Y.S.2d 856
(N.Y. 1959), involved a fictional motion picture about boxing in
which one of the actors made a single, isolated reference on the
soundtrack to "Stillman's Gym," an actual establishment in New York
City where prize fighters train. Delan v. CBS, Inc., 458 N.Y.S.2d
608, 614 (App. Div. 1983), involved a television documentary about
mental patients which used the plaintiff's picture for
approximately four seconds during a 60-minute telecast. These
cases involved a name and photograph that were used incidentally in
constitutionally protected expressions of thoughts, ideas,
newsworthy events, and matters of public interest. Here, U.S.
News' business of renting its subscribers' names falls far outside
the scope constitutionally protected expressions.
Moreover, subscriber names can hardly be characterized as
"incidental" to the sale or exchange of a mailing list. The whole
object of a mailing list rental is to rent subscriber's names for
others to use. Without the names, there would be no list and no
rental. Names are not a mere incident to the transaction; they are
the very commodity that is being rented.
VI. Rental of names on a mailing list in violation of the Privacy
Act constitutes the tort of conversion as to the owners of
those names.
This Court has held that the unauthorized use of a person's
name in violation of the Privacy Act constitutes the tort of
conversion -- i.e., the civil wrong that occurs when "a defendant
uses another's property as its own and exercises dominion over it
without the owner's consent." Riggins, 249 Va. at 397, 457 S.E.2d
at 364. Therefore, if U.S. News' unauthorized rental of its
subscribers' names violates the Privacy Act, that conduct
constitutes the tort of conversion.
VII. A person need not be "deprived of possession" of his name in
order to have a cause of action under the Privacy Act.
The Circuit Court held that Mr. Avrahami could not establish
a claim for conversion of his name under the Privacy Act unless
U.S. News had exercised "dominion or control over the defendant
Avrahami's name, such that he is deprived of possession of his
name." This ruling was erroneous because it is contrary to this
Court's holding in Riggins, 249 Va. 387, 457 S.E.2d 356 (1995)
(Privacy Act violation constituted "conversion" of the name of
former football player John Riggins). In Riggins, the defendant
had not dispossessed Mr. Riggins of his name; it had merely used
his name to promote the sale of Mr. Riggins' former home. Outside
science fiction movies like The Net, it is difficult to envision
any circumstances in which a person could be totally dispossessed
of his name. To require Mr. Avrahami to prove dispossession was
plainly error.
VIII. The Circuit Court erred in finding that individual names
contribute no value to mailing lists offered for rental.
The Circuit Court's "finding" that an individual name on a
subscriber list has no value was plainly erroneous. Names
obviously do have value. U.S. News' rental rates are based on the
number of names rented: the more names rented, the higher the rent.
The invoices for the rental of U.S. News' subscribers' names list
demonstrates that valuable consideration is paid for use of each
name.<6> U.S. News' witness, Catherine Hagney, testified that a
mailing list without names would have no value because the reason
that renters rent mailing lists is to obtain the right to use
names. (Tr. 189) Ms. Hagney further testified that when U.S. News
exchanges names, it does so on a name for name basis. (Tr. 119)
Every name counts.
The argument that no one would rent an individual name is
specious. No one would go to the bank to borrow one Dollar, but
this does not mean that Dollar bills are valueless. It simply
means that a single Dollar has insufficient value to justify the
cost of entering into a loan transaction. A single name likewise
has value, notwithstanding that the value may be insufficient to
justify a rental transaction.
Moreover, this Court held in Lavery (discussed in Part I),
that a plaintiff need not prove that his name has more than nominal
value in order to recover under the Privacy Act.
IX. Ram Avrahami has a property right in his name, as correctly
spelled or as spelled Ram Avrahani.
The Circuit Court's ruling that Mr. Avrahami has no property
right is his own name <7> should be reversed as contrary to this
Court's decisions in Lavery and Riggins.
The Court should likewise reverse the Circuit Court's decision
that Mr. Avrahami had no property right in the misspelled version
of his name, Ram Avrahani. This misspelling, which enabled Mr.
Avrahami to detect U.S. News' misappropriation of his name, clearly
did not mislead U.S. News concerning the identity of its
subscriber. The surname Avrahami is uncommon in Virginia. Mr.
Avrahami's first name, Ram, is likewise uncommon. U.S. News
accepted Mr. Avrahami's check in payment of his subscription,
although his name on the check was Avrahami, not Avrahani. The
United States Post Office successfully delivered copies of U.S.
News & World Report to Mr. Avrahami, notwithstanding the
misspelling of his name on U.S. News' address labels. U.S. News,
through its List Manager, matched Mr. Avrahami's income level with
the name Ram Avrahani for a list rental to The Gospel Mission of
Washington, D.C. In short, the misspelling was insignificant; it
misled no one as to the identity of the person to whom the name Ram
Avrahani referred.
The purpose of the Privacy Act is not to protect names, but to
protect people. A name is only a symbol for a person. The true
object of the Privacy Act is to protect a person from an
"unauthorized exploitation of his personality for purposes of
trade." Spahn, 221 N.E.2d at 546. Such an exploitation can be
accomplished by any combination of pictures or symbols that
"unmistakably identify" the individual to whom they refer. See
Orsini v. Eastern Wine Corporation, 73 N.Y.S.2d 426 (Sup. Ct. 1947)
(use of surname accompanied by coat of arms); People ex rel Maggio
v. Charles Scribner's Sons, 130 N.Y.S.2d 514 (City Mag. Ct. 1954).
Here, the individual that U.S. News identified to the
Smithsonian Magazine, the American Heart Association and the Gospel
Mission cannot be mistaken for anyone other than Ram Avrahami.
When U.S. News traded or rented the name Ram Avrahani, together
with his address, it identified Mr. Avrahami and enriched itself
just as surely as if Mr. Avrahami's name had been spelled
correctly. Therefore, the misspelling introduced by Mr. Avrahami
works no forfeiture of his rights under the Privacy Act.
X. U.S. News was not entitled to a declaratory judgment that it
could rent Ram Avrahami's name without his consent in
connection with rentals of its subscriber list.
The Circuit Court issued a declaratory judgment that U.S. News
could rent Mr. Avrahami's name, correctly spelled, without his
consent. Any defense arising out of the misspelling of Mr.
Avrahami's name obviously has no bearing on whether U.S. News has
a right to misappropriate Mr. Avrahami's name, correctly spelled.
If this Court agrees that the unauthorized rental of a person's
name violates the Privacy Act, the Court should reverse the
declaratory judgment.
XI. The Mail Preference Service established by the Direct
Marketing Association is no substitute for the "written
consent" required by the Privacy Act.
The Circuit Court held that Mr. Avrahami's suit was precluded
because he "failed to use reasonable means to have his name removed
from mailing lists." This ruling was erroneous because the Privacy
Act placed the burden on U.S. News to obtain Mr. Avrahami's
"written consent." The statute placed no burden on Mr. Avrahami
affirmatively to prevent the misappropriation.<8> To draw an analogy
from criminal law, no burglar ever got acquitted by arguing that
the homeowner should have locked the door.
XII. Mr. Avrahami was not guilty of unclean hands.
Mr. Avrahami's misspelling of his name as Avrahani hardly
rendered him guilty of "unclean hands." In misspelling his name,
Mr. Avrahami was using the same technique that U.S. News uses to
detect unauthorized use of its mailing list. Marking one's own
property for identification hardly constitutes unclean hands.
Nor was Mr. Avrahami under any legal or moral duty to register
with MPS, although he did so voluntarily when he lived in Kansas.
Nor did Mr. Avrahami trick or coerce U.S. News into renting
the names of its subscribers. U.S. News instituted this practice
on its own initiative to make money. All that Mr. Avrahami did was
to object to this violation of the Privacy Act.
The Circuit Court stretched to find facts that might support
the unclean hands defense. For instance, the Circuit Court found
that Mr. Avrahami is currently unemployed (Finding 58), that he
issued press releases (Finding 59), and that he filed suit so that
the notoriety would help him meet "chicks" (Finding 60). These
findings may reflect a dislike for Mr. Avrahami or his cause, but
they neither reflect the evidence nor provide proper considerations
for invoking the doctrine of unclean hands.
In Virginia, the Courts should protect a person's property
irrespective of his employment status or his motive for seeking
protection. Because the finding of unclean hands was based on
these improper considerations, Mr. Avrahami is entitled to a new
trial on the unclean hands issue.
XIII. The Circuit Court erred in ruling that an injunction is
inappropriate in this case because no showing of "irreparable
harm" was made and because an injunction would result in harm
to U.S. News that is greater than the benefit that would
result to Mr. Avrahami.
The Circuit Court should have granted Mr. Avrahami an
injunction because this relief is available as a matter of right
under the Privacy Act when a person's name is misappropriated.
Moreover, irreparable harm has never been a requirement for
enjoining the conversion of a plaintiff's property.
The injunction requested by Mr. Avrahami would have caused no
legal harm to U.S. News because U.S. News has no legal right to
rent the names of its subscribers without their consent. The
injunction would have caused no practical harm to U.S. News
because: (1) U.S. News regards Mr. Avrahami's name as having no
value; and (2) U.S. News can block further rentals of Mr.
Avrahami's name by entering a simple code next to Mr. Avrahami's
name on U.S. News' subscriber database. (Tr. 122-123)
The record is devoid of evidence that U.S. News would sustain
any economic harm if an injunction were granted. With no evidence
on which to rely, the Circuit Court's "finding" that U.S. News
would suffer economic harm from an injunction was mere
speculation.<9> In these circumstances, the Circuit Court plainly
erred in denying injunctive relief based on considerations of harm.
CONCLUSION
For the foregoing reasons, the Supreme Court should grant Mr.
Avrahami's petition for an appeal and, ultimately, should:
1. Reverse the declaratory judgment entered in favor of U.S. News
in U.S. News & World Report v. Avrahami, At Law No. 95-1318,
and enter final judgment in favor of Mr. Avrahami.
2. Reverse the dismissal of Mr. Avrahami's Complaint in Avrahami
v. U.S. News & World Report, In Chancery No. 96-203, and
remand the case with instructions to:
a. enjoin U.S. News from the further unauthorized rental of
Mr. Avrahami's name; and
b. award nominal damages in the amount of five Dollars,
representing one Dollar plus one Dollar for each instance
in which U.S. News has rented or exchanged Mr. Avrahami's
name (spelled Avrahani) without his consent.
c. award such punitive damages as may be appropriate.
Respectfully submitted,
RAM AVRAHAMI,
By Counsel
------------------------------
Footnotes:
<1> The Circuit Court's final Order, dated June 13, 1996, contained
twelve numbered conclusions of law, each of which will be referred
to herein as a "Conclusion."
<2> Finding refers to one of the numbered findings of fact made by
the Circuit Court in its final Order, dated June 13, 1996.
<3> Tr. refers to the transcript of the trial held on June 6, 1996.
<4> The List Manager also offers a demographically enhanced list,
titled "U.S. News Powerbase - Masterfile." (Tr. at 183) A renter
ordering from U.S. News' "Powerbase" can obtain lists of
subscribers with certain income levels or meeting various other
demographic criteria. (Tr. at 184) For example, the List Manager
put Mr. Avrahami in the category of U.S. News' subscribers earning
in excess of $75,000 per year, and rented his name (misspelled
Avrahani) to The Missions Group, (Tr. at 198-200), which wanted to
solicit contributions from U.S. News' subscribers with that income
level. Id.
<5> The original "privacy act," New York Civil Rights Law ## 50 and
51 (from which Virginia Code # 8.01-40 (A) was derived), was
intended to protect ordinary citizens. The New York legislature
enacted the privacy act in 1903 in response to Robertson v.
Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (1902), where
the plaintiff, a little girl who was not a celebrity, sued the
defendants for using her picture to promote the sale of flour. The
New York Court of Appeals held that the little girl had no common
law "right to privacy," but observed that the legislature could
create such a right. The New York privacy act was enacted in
response to this observation. See Time, Inc. v. Hill, 385 U.S.
374, 380 - 381 (1967); Spahn v. Julian Messner, Inc., 221 N.E.2d
543, 544 (N.Y. 1966).
<6> We invite the Court's attention to Mr. Avrahami's Exhibits J,
K, and L -- invoices by which U.S. News billed its "renters," The
American Heart Association and the Mission Group, on a per name
basis.
<7> The Circuit Court's Conclusion #1 -- that Mr. Avrahami had no
right to his name under various spellings -- included the correct
spelling, thereby holding that Mr. Avrahami has no right to his own
name, even when spelled correctly.
<8> The Circuit Court's ruling was erroneous also because it
disregarded Mr. Avrahami's uncontroverted testimony that he had
registered his name with the Mail Preference Service ("MPS") in an
effort to keep his name off mailing lists. The MPS had not kept up
with Mr. Avrahami's change of address from Kansas to Virginia, nor
had MPS worked effectively when Mr. Avrahami lived in Kansas.
<9> In a pretrial order, the Circuit Court denied Mr. Avrahami the
right to discover the amount of income that U.S. News obtains by
renting its subscribers' names. U.S. News itself offered no
evidence regarding its rental income.
APPENDIX
There follows a copy of Trial Exhibit I. (Tr. 181)
CERTIFICATE OF COUNSEL
The undersigned counsel for the Appellant hereby certifies:
1. The names of all of the appellants and appellees and the
names and addresses of their counsel are as follows:
Appellant: Ram Avrahami
Appellant's counsel: James Bruce Davis
Bean, Kinney & Korman, P.C.
2000 North 14th Street, Suite 100
Arlington, Virginia 22201
(703) 525-4000
Appellee: U.S. News & World Report, Inc.
Appellee's counsel: David G. Fiske, Esquire
Lori Vaughan Ebersohl, Attorney
Shaw, Pittman, Potts & Trowbridge
2300 N Street, N.W.
Washington, D.C. 20037
2. A copy of this Petition has been mailed this date to
opposing counsel.
3. Counsel for Appellant desires to state orally to a panel of
the Court the reasons why this Petition should be granted,
and wishes to do so in person.
Dated: September 11, 1996 /s/
James Bruce Davis