JACLYN SWEDBERG v. GOLDFINGER'S SOUTH, INC., D/B/A SHOWGIRLS, INC.

Third District Court of Appeal
State of Florida
Opinion filed March 16, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-964
Lower Tribunal No. 20-10501
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Jaclyn Swedberg,
Appellant,
vs.
Goldfinger's South, Inc., d/b/a Showgirls, Inc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Alan Fine,
Judge.
The Casas Law Firm, P.C., and Ludmila Khomiak, for appellant.
Joseph J. Portuondo, for appellee.
Before EMAS, LOGUE, and MILLER, JJ.
LOGUE, J.
Jaclyn Swedberg appeals the trial court’s order dismissing her
complaint as barred by the applicable four-year statute of limitations. Ms.
Swedberg sued Goldfinger’s South, Inc. d/b/a Showgirls Inc., an adult
entertainment club, in 2019 for misappropriating her likeness. She alleged
Showgirls posted two advertisements on Facebook using her image. The
two advertisements were identical with the same format, words, and picture
of her. One was posted in 2015 to promote the Club’s 2015 Cinco de Mayo
event and the other was posted in 2016 to promote the Club’s 2016 Cinco
de Mayo event. The first was posted more than four years before the filing
of the complaint. The second was posted less than four years before the
filing of the complaint.
The question presented is whether the identical Facebook posts
published at different times to promote different events constitute a single
publication under section 770.07, Florida Statutes (2016). The trial court held
that they did and therefore the statute of limitations expired because it began
to run from the first posting. For the reasons explained below, we hold that
the two posts, although identical, do not constitute a single publication and
reverse.
Factual and Procedural Background
On May 15, 2020, Ms. Swedberg filed the instant action alleging
violation of section 540.08, Florida Statutes, for the unauthorized publication
of name/likeness (Count I); violation of common law right of publicity (Count
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II); conversion (Count III); and unjust enrichment (Count IV). The complaint
alleged that Showgirls had published Ms. Swedberg’s likeness without her
permission to market its business interests on social media accounts.
Ms. Swedberg attached to her complaint two advertisements posted
by Showgirls to the Club’s Facebook account. The two advertisements used
the identical text, photograph, and format. The first advertisement was
posted on Showgirls’ Facebook account on April 11, 2015 to promote
Showgirls’ 2015 Cinco de Mayo party. The second advertisement was
posted on May 4, 2016 to promote Showgirls’ 2016 Cinco de Mayo party.
Showgirls moved to dismiss the complaint asserting that Ms.
Swedberg’s action was barred by the four-year statute of limitations by virtue
of the single publication rule. Showgirls asserted that because the
publications were of a single, unmodified image, Ms. Swedberg’s cause of
action accrued when the image was first published on April 11, 2015 and
expired four years later on April 11, 2019. Showgirls asserted that the statute
of limitations did not restart because the original image was neither modified
nor presented in a different format.
Ms. Swedberg countered that the second posting of her image
constituted a separate publication in which Showgirls consciously decided to
republish the image, and therefore the single publication rule did not apply.
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The trial court agreed with Showgirls and dismissed the action. This appeal
timely followed.
Discussion
We review a trial court’s order granting a motion to dismiss de novo.
Nationstar Mortg., LLC v. Sunderman, 201 So. 3d 139, 140 (Fla. 3d DCA
2015). Moreover, “[a] legal issue surrounding a statute of limitations question
is an issue of law subject to de novo review.” Fox v. Madsen, 12 So. 3d 1261,
1262 (Fla. 4th DCA 2009) (quoting Hamilton v. Tanner, 962 So. 2d 997, 1000
(Fla. 2d DCA 2007)). While the statute of limitations is generally an
affirmative defense, “a party can raise a statute of limitations defense in a
motion to dismiss if that defense appears on the face of the complaint.”
Sunderman, 201 So. 3d at 140; see also Fla. R. Civ. P. 1.110(d) (“Affirmative
defenses appearing on the face of a prior pleading may be asserted as
grounds for a motion or defense under rule 1.140(b) . . . .”).
The parties agree that the applicable statute of limitations is four years.
They also agree that the first advertisement falls outside of the four-year
limitations period. See Putnam Berkley Grp., Inc. v. Dinin, 734 So. 2d 532,
536 (Fla. 4th DCA 1999) (holding that actions based on a publication must
be brought within four years of the date of publication, rather than within four
years of “discovery of the fact of publication”). The issue on which the parties
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disagree is whether the second advertisement should be considered as part
of a “single publication” with the first advertisement pursuant to the single-
publication rule.
The single publication rule provides that a “cause of action for
damages founded upon a single publication or exhibition or utterance, as
described in § 770.05, shall be deemed to have accrued at the time of the
first publication or exhibition or utterance thereof in this state.” § 770.07, Fla.
Stat. Section 770.05 in turn refers to causes of action of “libel or slander,
invasion of privacy, or any other tort founded upon any single publication,
exhibition, or utterance, such as any one edition of a newspaper, book, or
magazine, any one presentation to an audience, any one broadcast over
radio or television, or any one exhibition of a motion picture.”
The single publication rule developed out of the law of defamation and
libel. At common law, each publication of a defamation or libel gave rise to a
separate cause of action. With the advent of mass communication, however,
obvious problems were presented by a rule of law that would view the sale
of each copy of a newspaper or book as a separate tort. To correct these
problems, courts began treating a single edition of a newspaper or book as
a single publication. Under this approach, the wideness of the dissemination
of a particular edition does not give rise to separate torts but goes instead to
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the issue of damages. See generally Firstamerica Dev. Corp. v. Daytona
Beach News-J. Corp., 196 So. 2d 97, 101 (Fla. 1966).
Thus, the purpose of the single publication rule is to avoid continuous
litigation following mass dissemination in the modern media. See, e.g.,
Musto v. Bell South Telecomms. Corp., 748 So. 2d 296, 298 (Fla. 1999)
(noting the rationale underlying the single publication rule includes “avoiding
a vast multiplicity of lawsuits that would result from defamatory statements
contained in a mass publication such as a newspaper or magazine”);
Daytona Beach News–Journal Corp. v. Firstamerica Dev. Corp., 181 So. 2d
565, 568 n.1 (Fla. 3d DCA 1966) (noting that the single publication rule is “a
convenient tool to express the rule that all causes of action for widely
circulated libel must be litigated in one trial, and that each [publication] need
not be separately pleaded and proven” (citation omitted)). See also
Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 142 (5th Cir.
2007) (explaining that the “purpose of the single publication rule is to prevent
plaintiffs from bringing stale and repetitive defamation claims against
publishers”).
The purpose is not to deprive an injured plaintiff of her right to bring
suit, “but rather to protect the defendant—and the courts—from a multiplicity
of suits, an almost endless tolling of the statute of limitations, and diversity
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in applicable substantive law.” Buckley v. New York Post Corp., 373 F.2d
175, 180 (2d Cir. 1967). This means that continued dissemination of a
statement through the mass media will be treated as a single publication
when the publisher “does not make a separate publishing decision as to each
copy or small batch of copies.” See Roberts v. McAfee, Inc., 660 F.3d 1156,
1169 (9th Cir. 2011).
Although the single publication rule developed out of defamation, the
codified versions, including Florida’s, extend the rule to “any other tort
founded upon any single publication.” § 770.05, Fla. Stat. This broad
language includes misappropriation of a likeness for commercial purposes.
Miller v. Anheuser Busch, Inc., 348 F. App'x 547, 550 (11th Cir. 2009)
(“Florida applies the ‘single publication rule’ in misappropriation cases
brought under Fla. Stat. § 540.08 . . . .”). See, e.g., Christoff v. Nestle USA,
Inc., 213 P.3d 132, 137 (Ca. 2009) (interpreting similar language in
California’s codified single publication rule as including unauthorized
commercial exploitation of a model’s image).
Moreover, Florida’s single publication rule applies to publication over
the internet. Norkin v. The Fla. Bar, 311 F. Supp. 3d 1299, 1304 (S.D. Fla.
2018) (noting that “[e]very state court that has considered the question
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applies the single-publication rule to information online.” (quoting Pippen v.
NBCUniversal Media, LLC, 734 F.3d 610, 615–16 (7th Cir. 2013))).
We conclude that Florida’s single publication rule does not apply in a
situation like the one before us. The allegations in the complaint indicate that
Showgirls’ second publication was not the continued dissemination of a
single edition of a book, newspaper, or online article. Instead, it was the
result of a second decision by the Club in 2016 to make a separate use of
Ms. Swedberg’s likeness to promote a different event at the Club. In Florida,
a separate and distinct decision to publish even identical information does
not fall within the ambit of the single publication rule.
We reach this conclusion through application of the Second District’s
decision in Baucom v. Haverty, 805 So. 2d 959, 960 (Fla. 2d DCA 2001). In
that case, a personal injury plaintiff was referred to a medical group to
prepare a medical assessment report to use for litigation. After the litigation
was settled, the medical group used the report as an example of their work
to market their services to various law firms. The group submitted the
identical report to prospective clients, without making any changes. Nine
years after the first use of the report, and well outside the applicable statute
of limitations for that first publication, the original plaintiff sued the medical
group for misappropriation of her name and likeness. The Second District
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held that the single publication rule did not bar suit for the later publications
of the identical report:
Here, Baucom alleged multiple publications or
disseminations. In other words, a new publication
occurred each time the appellees presented the
report to a new potential employer. Consequently,
each time the appellees presented the report to a
new potential employer, the applicable four-year
statute of limitations began to run anew.
Id. (emphasis added).
Like the medical group in Baucom, Showgirls misappropriated Ms.
Swedberg’s likeness in separate advertisements. The second posting to
Facebook was not simply an inadvertent and unconscious repetition of the
original ad disseminated through modern media outlets. 1 To the contrary, the
second posting was a conscious and separate decision to make a further
commercial use of Ms. Swedberg’s image to advertise a different event at the
Club. This crucial fact is not changed merely because the second image itself
was identical to the original image. See Baucom, 805 So. 2d at 960.
In this regard, we decline to follow Zoll v. Jordache Enterprises, Inc.,
No. 01 Civ. 1339(CSH), 2002 WL 31873461 (S.D.N.Y. Dec. 24, 2002), which
1
See Brooks v. TVOne, LLC, No. GJH-19-2315, 2020 WL 3833126 at *4
(D.Md. July 7, 2020). In that case, relied on by Showgirls, the court
concluded that the single publication rule applied because the second
publication constituted nothing more “than delayed circulation of the original
edition.”
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we read as applying apparently unique New York privacy law to hold that a
subsequent decision to republish must be combined with some modification
or revision of the original publication to avoid application of the single
publication rule. It does not appear that this ruling would extend beyond
causes of action under New York privacy law. See Lehman v. Discovery
Commc'ns, Inc., 332 F. Supp. 2d 534, 539 (E.D.N.Y. 2004) (applying New
York defamation law to find “the rebroadcast of the television program
constitutes a republication and therefore provides for a new cause of action
and refreshes the statute of limitations.”). In any event, in Florida, the
application of the single publication rule turns on the question of whether a
separate and distinct decision was made to republish the material. Any
modification of the material might shed light on whether a separate decision
to republish was made, but the absence of modification does not mechanically
place a publication within the single publication rule. See Baucom, 805 So. 2d
at 960.
Reversed and remanded.
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