## Facts

- In March 2003, Jane Doe and friends went to South Padre Island for spring break; Doe was 17 years old.
- Topheavy Studios, Inc. filmed spring-break footage for a video game, “The Guy Game,” a trivia contest that rewarded correct answers with images of topless women.
- Topheavy’s CEO acknowledged the company knew minors might be present and said Topheavy used protocols to prevent minors from participating, including checking identification at the contest and afterward.
- To participate, contestants had to present identification showing they were at least 18 years old and sign a model release allowing Topheavy to use the footage.
- Doe presented a fake California identification card and signed the release using the false name on the ID.
- Doe’s paperwork contained irregularities (including mismatched information and scratch-outs on the release), but Topheavy allowed her to participate anyway.
- During the contest, women answered trivia questions and were instructed to expose their breasts for incorrect answers; Doe exposed her breasts multiple times and received $20.
- “The Guy Game” was released for sale in August 2004. Doe learned the game contained multiple images of her topless, and she also found her likeness used to market the game online.
- Doe sued Topheavy and the distributor (Gathering of Developers, Inc.), asserting invasion of privacy (including misappropriation of likeness and disclosure of private facts) and other tort and restitution theories, and sought injunctive relief and damages.
- The trial court issued a temporary injunction barring further manufacture, sale, distribution, and related marketing of the game and use of Doe’s images while the case proceeded. The court also permitted Doe to proceed under the pseudonym “Jane Doe.”
- Defendants filed an accelerated interlocutory appeal challenging the temporary injunction and the pseudonym order.

## Issues

1. Whether the trial court abused its discretion by granting a temporary injunction based on a probable right of recovery and a probable, imminent, irreparable injury.
2. Whether Doe’s signed release and use of a fake ID defeated her showing of a probable right of recovery at the temporary-injunction stage, including whether her consent was voidable because she was a minor.
3. Whether the injunction was an unconstitutional prior restraint on speech.
4. Whether the injunction was improper because it restrained conduct beyond Texas.
5. Whether the trial court abused its discretion in setting the amount of the injunction bond.
6. Whether the court of appeals had statutory jurisdiction to hear an interlocutory appeal from the order allowing Doe to proceed under a pseudonym.

## Decision

- The court of appeals affirmed the temporary injunction, holding the trial court did not abuse its discretion in ordering interim relief to stop further distribution and related uses of Doe’s images pending final judgment.
- The court concluded the record contained evidence supporting the trial court’s findings on probable right of recovery and probable, imminent, irreparable injury.
- The court rejected defendants’ arguments that the injunction was invalid as an unconstitutional prior restraint on the record presented.
- The court rejected the contention that the injunction was improper merely because defendants’ distribution and sales occurred beyond Texas, given the trial court’s authority to restrain parties subject to its jurisdiction.
- The court found no reversible abuse of discretion in the bond amount on the interlocutory record.
- As to the pseudonym order, the court declined interlocutory review because the appeal was not authorized by the interlocutory-appeal statute; the pseudonym order remained in place.

## Legal Principles

- A temporary injunction is intended to preserve the status quo pending trial; the applicant must show (1) a probable right of recovery and (2) a probable, imminent, and irreparable injury for which there is no adequate remedy at law.
- Appellate review of a temporary injunction is limited to whether the trial court clearly abused its discretion; the appellate court does not decide the ultimate merits.
- In Texas, invasion of privacy by misappropriation generally requires evidence that (1) the defendant appropriated the plaintiff’s name or likeness for the value associated with it, (2) the plaintiff is identifiable from the publication, and (3) the defendant obtained some benefit.
- Consent may bar a misappropriation claim, but a minor’s contractual consent may be voidable; at the temporary-injunction stage, a minor may still show a probable right of recovery despite having signed a release, particularly where the defendant proceeded despite irregularities suggesting the participant might be underage.
- Ongoing commercial distribution of a product using a minor’s topless images can support a finding of probable, imminent, irreparable injury because continued dissemination is difficult to fully remedy with money damages alone.
- An injunction directed to stopping continued use of a plaintiff’s likeness in a specific commercial product may be upheld at the temporary-injunction stage despite First Amendment objections, where the trial court had evidence of an actionable privacy-based claim.
- Texas courts may enjoin out-of-state conduct by parties within the court’s jurisdiction when necessary to make the relief effective.
- Interlocutory appellate jurisdiction is statutory; absent authorization under Tex. Civ. Prac. & Rem. Code § 51.014, an appellate court will not review, on an interlocutory basis, an order permitting a party to proceed under a pseudonym.

## Conclusion

The court of appeals left in place a temporary injunction halting further manufacture, sale, distribution, and related commercial uses of “The Guy Game” containing a 17-year-old’s topless images, concluding the trial court acted within its discretion on probable right and irreparable-harm findings despite defendants’ consent and First Amendment arguments, and it dismissed interlocutory review of the order allowing Doe to litigate as “Jane Doe” for lack of statutory authorization.


Topheavy Studios Inc. v. Doe, 2005 WL 1940159 (2005)