August 10, 2009

Privacy claims by students in New Jersey schools have sparked heated debates regarding student searches, as well as the searches of their personal property and school lockers. Several parties may be involved in such a scenario – students, parents, teachers, school administrators and school boards. A recent court case takes this debate one step further – into the realm of privacy issues related to student performances in school plays and the role of parent teacher associations (PTAs). The Appellate Division of New Jersey’s Superior Court recently addressed these issues in Jeffries v. Whitney E. Houston Academy PTA, a case concerning the videotaping of student performances and how those videotapes are subsequently utilized.

Whitney E. Houston Academy (the Academy) is an elementary school for the performing arts operated and maintained by the East Orange Board of Education (EOBOE). A requirement of the Academy is that students frequently participate in school productions. At the beginning of each school year, parents are asked to sign forms consenting to the EOBOE’s videotaping, photographing and sound recording of their children in school facilities and during school productions. The form provides information regarding the potential uses of the videotapes, photographs and recordings, which include publication in media sources and use in exhibits, publicity and public relations. It is well known that the Academy staff often videotapes student performances throughout the school year and that teachers utilize those videotapes as instructional tools to help students evaluate themselves and improve their performing arts skills and talents.

The Academy has a PTA with the stated purposes of promoting the welfare of the children, bringing home and school closer together for more cooperative education and developing the highest advantages in education. In the spring of 2006, the PTA presented a play called “Cinderella with a Twist.” The play was produced by the Academy and the EOBOE. However, the admission fees charged were collected by the PTA and deposited into an account for the purpose of funding student activities.

The parent of an Academy student participating in this play inquired one week beforehand as to the videography that would be completed during the performance. Although informed that any such inquiry should be directed toward the play director or the Academy’s principal, the parent did not inquire further. This particular student had a small, non-speaking dance role in the production. Videotapes of the production were then offered for sale through the PTA.

The parent subsequently filed a complaint against the PTA and EOBOE on behalf of her minor child, alleging that her daughter had been exploited and suing for invasion of privacy. Her argument was that she had signed a form allowing the EOBOE to videotape school productions and use the tapes for promotional purposes but had given no such consent to the PTA, which she viewed as separate and distinct from the Academy and the EOBOE. The trial court sided with the defendants because there was no evidence that the PTA had received a commercial benefit, as it had acted with a charitable, rather than a commercial, purpose. According to the judge, this provided the PTA with immunity pursuant to the Charitable Immunity Act.

The four distinct acts that will constitute the tort of invasion of privacy have been delineated by the courts in earlier cases. They are (1) intrusion that constitutes an invasion of space or prying into personal affairs, (2) public disclosure of private facts, (3) placing an individual in a false light in the public eye and (4) appropriation of an individual’s name or likeness for another’s benefit. On appeal, plaintiff focused her arguments on the appropriation element of an invasion of privacy cause of action. However, the Appellate Division was not persuaded by those arguments.

The appellate court found that plaintiff had failed to establish that the PTA used the student’s image in a manner that furthered a commercial or trade purpose or that the student’s likeness was used in anything more than an incidental manner. The court also found that damages had not been proven because there was no showing of harm to the student.

This case represents yet another limitation upon the privacy rights of students attending schools in New Jersey while promoting support for the long-standing belief in the power of local charitable or welfare associations like the neighborhood school PTA. If instead of the PTA, the play had been videotaped by a commercial entity which then sold it for a profit, the outcome of the case most likely would have been different. Thus, the intent and purposes behind an organization’s actions may mean quite a bit when a dispute goes to court and can influence the court’s balancing of the parties’ rights.

Dana M. Lane is an associate of Hill Wallack LLP in the Princeton office where she is a member of the Litigation Division and the School Law and Municipal Law Practice Groups. Ms. Lane concentrates her practice in general litigation, municipal law, school law and labor and employment issues.