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

• Court: District Court of Appeal of Florida
• Decided: March 16, 2022
• Docket: 21-0964
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 16, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-964 Lower Tribunal No. 20-10501 ________________

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

2 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.

3 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

4 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

5 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

6 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

7 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

8 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.”

9 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.