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D created a videotape that instructs customers how to install ceramic tile. D asked P for permission to videotape him installing tile in a home. P consented to appear in the video. The video was completed, and D began providing it to the public. The television commercial contained blank space into which short bits of videotape could be inserted, thus creating a number of different versions of the television commercial. One of the inserts was taken from the instructional video in which P participated. The television commercial with P's image was aired a number of times. P complained about his appearance in D's television commercial. D asserted that it called TCI (D) and requested that the commercial be discontinued. P sued Ds for infringement to his right of publicity; invasion of privacy by appropriating his likeness; and for the establishment of a constructive trust and an accounting. TCI (D) filed a motion to dismiss plaintiff's claim. The trial court agreed and dismissed count V of P's complaint. D filed a motion for summary judgment alleging that P's consent to appear in the instructional video extended to the commercial and that P did not incur damages. The trial court held that P did not sustain actual damages and the lack of evidence of malice or reckless indifference to P's rights precluded an award of punitive damages. P appealed.

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