The photo on the cover of “Nickel and Dimed” is not reasonably related to the subject matter of the nonfiction bestseller, an Illinois judge has ruled in refusing to dismiss a privacy suit against the book's publisher.

While working in 1986 as a waitress in Peoria, Kimmie Jo Christianson posed for Fortune magazine to illustrate an article about single mothers struggling to make ends meet. She sued Henry Holt and Co. last year after the same image appeared without her permission on the cover of “Nickel and Dimed.”

The book recounts author Barbara Ehrenreich's experiences working low-wage jobs such as waiting tables and the publisher argued that the First Amendment protects the cover of the book as much as it would the content.

But U.S. District Judge Joe Billy McDade said the photo of Christianson “does not depict any part of the story of Ms. Ehrenreich’s personal journey” and therefore fits within the publisher's “role of selling the book” rather than the author's role of telling a story.

“Defendants envision a world where a publisher can troll any medium for any individual’s personal image and use that image on the packaging for their publication -- free from the constraints that are faced by every distributor of every other product,” he ruled in a recent opinion. “This Court does not interpret the law as envisioned by Defendants.”

Christianson filed suit under the Illinois Right of Publicity Act, which says “[a] person may not use an individual’s identity for commercial purposes during the individual’s lifetime without having obtained previous written consent.” She alleges she only consented to having Fortune use her photograph.

Holt invoked two exceptions to the statute, but McDade said neither of them applied because the text of “Nickel and Dimed” does not “attempt to portray, describe or impersonate Plaintiff” and the use of her image on the cover has only the commercial purpose of “catch[ing] the eye of a prospective customer.”

On the First Amendment issue, McDade acknowledged that “The photograph and the book both concern the plight of the working poor in America.” But “at no point,” he continued,

is Plaintiff, her photo, or the restaurant where she appears ever part of the subject matter of the book ... [A]s a result, the book and the photo do not bear a reasonable relationship with each other.

In an earlier ruling, McDade commented, “Like it or not, customers judge a book by its cover and covers are often among the main reasons that today’s reader purchases a book.”

“Nickel and Dimed” has sold more than one million copies and been adapted into an off-Broadway play. Any damages to Christianson could be limited since, as McDade has noted, “she is not in the business of modeling or marketing the commercial value of her identity for book covers.”

Christianson says in her complaint that she never signed a written release "for the use of her picture in Fortune Magazine or for use in any other publication." She is also suing the Magnum photo agency and Ehrenreich.

By Matthew Heller
9/20/07