## Facts

- Cynthia Cheatham designed distinctive clothing and displayed her designs at biker events.
- At a public bikers’ festival in Ohio, she wore jeans modified to expose her backside through fishnet fabric.
- A photograph was taken depicting her backside from the waist to the thighs; her face was not shown and she was not identified.
- A biker magazine published the photograph in a festival photo essay.
- A related magazine later ran an advertisement for a T-shirt sold by a manufacturer; the advertisement displayed a similarly clad backside that Cheatham alleged portrayed her likeness.
- Cheatham alleged the publisher supplied the photograph for use on the T-shirts and received income tied to T-shirt sales.
- She sued for invasion of privacy, commercial exploitation of a likeness, negligent licensing, misappropriation for commercial gain, and unjust enrichment, all based on alleged unauthorized commercial use of her image.
- She also sought leave to amend to add interference with prospective business relations and intentional infliction of emotional distress (IIED).

## Issues

1. Whether Kentucky law recognizes a claim for appropriation of image/likeness (right-of-publicity-type claim) and whether Cheatham plausibly alleged such a claim.
2. Whether the other pleaded theories (invasion of privacy beyond appropriation, commercial exploitation, negligent licensing, misappropriation for commercial gain, unjust enrichment) stated independent, viable causes of action.
3. Whether amendment to add interference with prospective business relations and IIED should be permitted or denied as futile.

## Decision

- The court granted the motions to dismiss in substantial part and dismissed all claims except appropriation of image/likeness.
- The court held the complaint plausibly alleged commercial use of Cheatham’s recognizable image sufficient to survive dismissal on the appropriation theory, while reserving proof questions (recognizability and commercial value) for a later stage.
- The court dismissed the remaining counts as either not independently viable on the pleaded facts or duplicative relabeling of the appropriation theory.
- The court denied leave to amend to add IIED and interference with prospective business relations as futile.

## Legal Principles

- A claim for appropriation of image/likeness protects a property-like interest in the commercial value of a person’s identity and requires plausible allegations that the identity used had recognizability and commercial value in context.
- Publication of a non-identifying photograph taken at a public event, without more, does not plausibly support non-appropriation privacy torts where the plaintiff’s face and name are absent and the conduct alleged is not private-facts disclosure or comparable privacy invasion.
- Labels such as “commercial exploitation,” “misappropriation for commercial gain,” and “negligent licensing” do not create separate torts when they merely restate the same alleged unauthorized commercial use addressed by appropriation of likeness.
- Unjust enrichment is not an independent substitute where the alleged wrong is fully captured by a tort claim for unauthorized commercial appropriation.
- Amendment is futile where proposed IIED allegations do not reach the high threshold of extreme and outrageous conduct, and where proposed interference allegations do not plausibly plead intentional, improper interference with specific prospective business relationships.

## Conclusion

The court permitted the case to proceed only on an appropriation-of-likeness theory based on alleged unauthorized commercial use of Cheatham’s recognizable image, while dismissing duplicative or unsupported privacy and economic tort claims and denying amendment to add IIED and interference claims as futile.


Cheatham v. Paisano Publ'ns, Inc., 891 F. Supp. 381 (W.D. Ky. 1995)