A Houston woman may be distressed that porn star Syvette Wimberly is using her name, but Texas law is unlikely to provide her with a remedy unless she can show that the name of a noncelebrity has “independent value.”

The real Syvette Wimberly alleges Lara Madden, a former high school friend, has misused her name as an alias while appearing in such adult videos as “Desperate,” causing her “extreme embarrassment” and “wrongly linking [her] with the ... ideas, judgments, attitudes and behavior associated with the adult film industry.”

Since leaving high school, Wimberly says, she had not seen or heard of Madden until an acquaintance told her “there was a woman appearing in multiple explicit pornographic videos with [her] name.” She then learned that woman was Madden.

“Defendants appropriated Plaintiff's name and its value ... and have received and continue to receive advantages and benefits from the appropriation and use of Plaintiff's name,” Wimberly says in a Harris County District Court petition.

The suit, which also names porn distributor Vivid Entertainment as a defendant, seeks an injunction on Madden's use of the name and unspecified damages.

Actress Katie Holmes has recently objected to the modified use of her name by porn actress Katee Holmes. And in a pending trademark proceeding, singer Mariah Carey is trying to prevent an actress from registering the stage name Mary Carey as a mark.

But Wimberly's claim for invasion of privacy by misappropriation ventures into uncharted territory since there is no precedent in Texas for attributing “independent value” to a noncelebrity's name.

The Texas publicity rights statute applies only to the unauthorized use of an individual's name after the individual's death and requires that the name had “commercial value at the time of his or her death or comes to have commercial value after that time.”

In Matthews v. Wozencraft, 15 F.3d 432 (1994), the 5th U.S. Circuit Court of Appeals said a former Texas police officer could not sue author Kim Wozencraft for portraying him in the book “RUSH.” “The misappropriation tort does not protect one's name per se; rather, it protects the value associated with that name,” the court noted.

On the other hand, the name Syvette Wimberly is certainly distinctive and the 9th Circuit has said in dicta that

the appropriation of the identity of a relatively unknown person may result in economic injury or may itself create economic value in what was previously valueless. Motschenbacher v. R. J. Reynolds Tobacco, 498 F.2d 821 (1974).

As for emotional distress, Wimberly says Madden "deliberately chose to use Plaintiff's name as her 'stage name' for her pornographic performance career despite knowing the potential consequences for Plaintiff.”

But even if Madden knew she would embarrass her former friend, that should not be enough to make her liable under the intentional infliction of emotional distress tort, which requires conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.”

By Matthew Heller
7/8/07