Video Game Law Blog

September 21, 2005

In an earlier posting we reported that an anonymous teenager had won a temporary injunction against Topheavy for including topless footage of her in The Guy Game. She had been videotaped while competing publicly in a topless contest during spring break. The problem was that she was a minor at the time of the contest, so her lawyers are arguing that the waiver she signed was void (despite the fact that she provided ID at the time which showed she was an adult).

Topheavy appealed, arguing that the plaintiff lied about her age and then willingly participated in the contest knowing she would be asked to flash her breasts in public. However, the Court of Appeal recently upheld the injunction.

The Court of Appeal ruled that there was at least a possibility that the plaintiff could eventually win her lawsuit against Topheavy. The court also ruled that the U.S. First Amendment doesn't give Topheavy the right to use the plaintiff's likeness to promote a commercial product if the plaintiff didn't consent to it (and of course, the real issue in this case is whether the plaintiff's consent was legal).

Topheavy Studios v. Doe
September 14, 2005 3rd Court of Appeals, Texas
Tex. App. LEXIS 6462
KEYWORDS: injunction – consent – likeness – minor
Summary by Chris Bennett