"Syvette Wimberly"

A Houston woman who alleges an actress in a porn film stole her name has admitted she has no “ownership interest” in the name Syvette Wimberly, perhaps dooming her hopes of winning an unusual privacy case.

Lara Madden, a former high-school friend of the real Syvette Wimberly, used the name for her appearance in the Vivid Entertainment film “Desperate.” Wimberly sued both Madden and Vivid in June 2007, alleging invasion of privacy by misappropriation and negligence.

The privacy tort requires that “the defendant appropriated the plaintiff's name or likeness for the value associated with it.”

But in a deposition (excerpted here), Wimberly said she didn't know if her name had any value before Madden used it. That led to the following exchange with Vivid attorney Geoffrey A. Berg:

“Well, you haven't copyrighted it, have you?”
“No.”
“You don't claim any special ownership interest in it other than it is your name?”
“Look, I don't know if I own the rights to my name, but I do know that I've -– I've been harmed in this situation and I have dealt with stress in this situation --”

Since filing her petition, Wimberly has married and now goes by Syvette Keathley. But she said the name Syvette is so unique that she would have sued if Madden had chosen the name Syvette Smith.

Vivid cited the deposition testimony in a motion for summary judgment, which will be heard Aug. 4 in Harris County District Court. “Uniqueness alone does not bestow a proprietary interest in Wimberly's name,” the company says. “No goodwill, notoriety, skill, commercial value, or reputational value is associated with it.”

There is no precedent in Texas for attributing “value” to a noncelebrity's name. Vivid also says the negligence claim should be dismissed because it owed Wimberly no duty to ask Madden if the name Syvette Wimberly belonged to anyone she knew.

“This duty would impose on all film studios -– mainstream and adult –- the burden of investigating through a 'background check' every stage name to prevent use of a name which might be part of of the name of someone the actor once met,” Vivid argues. “Such a duty would chill all film makers' ability to publish.”

In her petition, Wimberly said Madden's use of her name had caused her “extreme embarrassment” and “wrongly link[ed] Plaintiff with the ... ideas, judgments, attitudes and behavior associated with the adult film industry.”

Nevertheless, she testified that nobody had confused her with the X-rated Syvette Wimberly. When Berg asked her, “Nobody would think that you would do adult films, right?” she replied, “Right.”

Madden has moved separately for summary judgment, arguing that “Plaintiff's name clearly has no value under the law.”