Com360: Invasion of Privacy
The Right to Be Left Alone
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Four Torts (Civil Wrongs):
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Commercial appropriation of name or
likeness
Public disclosure of embarrassing private
facts
Placing an individual in a false light
Intrusion upon physical seclusion
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Appropriation
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It is illegal to appropriate an individual’s name
or likeness for commercial or trade purposes
without consent.
It is a property right – protects the economic value
of the name or likeness
It is a personal right—protects an individual from
the embarrassment and humiliation that can occur
when a name or picture is used
Commercial use
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What are advertising and trade purposes?
For profit or other interest
Use of someone’s name or likeness in an
advertisement in any media outlet including
websites (includes manuals, recruiting material,
etc.)
Use of someone’s name or likeness in a media
product (television show, movie)
News Exception
Individuals cannot sue for appropriation in
a news story. “News” has been widely
interpreted by the courts to include anything
that is not an explicit advertisement.
However:
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the Zacchini case (fair use)
Muhammad Ali case (relevance)
Playgirl case (false depiction)
Ali v. Playgirl, Inc.,
447 F. Supp. 723 (S.D.N.Y. 1978)
Ali v. Playgirl, Inc.,
447 F. Supp. 723 (S.D.N.Y. 1978)
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Appropriation: The man clearly resembled
former heavyweight champion Muhammad Ali.
Playgirl was found liable for appropriating Ali's
likeness without his consent.
The court held: "Ali has established a
commercially valuable proprietary interest in his
likeness and reputation, analogous to the name of
successful business entity.“
Ali v. Playgirl, Inc.,
447 F. Supp. 723 (S.D.N.Y. 1978)
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Would the case be the same if the magazine had
shown Ali wearing boxing trunks?
As a public figure, his likeness and name
obviously could be used with legitimate news and
feature articles.
However, there was no legitimate news value to
a depiction of Ali's nudity
News v. commercial use controversies
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Incidental use
News Promos
The use of a person’s name or likeness in an
advertisement for a media product is usually not
regarded as an appropriation if the name or
likeness has been or will be part of the content
Art or commercial use?
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ETW Corp. v. Jireh Publishing, Inc. 2003
Name Or Likeness
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Names?
Not limited to full names
Can be nicknames, stage names, pen names
A likeness?
Photographs, paintings, sketches, cartoons
Fictional characters
Look alikes / imitations (e.g.,Vanna White case)
Sound alikes
Consent as a Defense
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Written consent is generally uncontestable
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When Consent Won’t Work
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Consent today may not be valid in the distant future
Some persons (minors, wards of the state) cannot give
consent
Consent to use a photograph does not apply if the image is
materially altered or changed
Consent not in exchange for money
Reminder: Four Torts
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Commercial appropriation of name or likeness
Public disclosure of embarrassing private facts
Placing an individual in a false light
Intrusion upon physical seclusion
Public disclosure of embarrassing
private facts
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The interest protected is that of reputation. It is in
reality an extension of defamation ... with the
elimination of the defense of truth
Public disclosure of embarrassing
private facts
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First, the disclosure of the private facts must be a
public disclosure, not a private one.
Second, the facts disclosed to the public must be
private facts, not public.
Third, the matter made public must be one that
would be offensive and objectionable to a
reasonable man of ordinary sensibilities.
Disclosure of private facts
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Disclosure of private facts (true information)
that are embarrassing and not newsworthy.
(Defamation laws do not apply because the facts
are true)
Public:
Public view is a fair game (but there are
exceptions, e.g., “fun house woman case”)
Public records and proceedings
Expectation of Privacy
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A reasonable expectation of privacy exists in a
private residence, hospital, hotel room, private
office etc.
No Expectation of Privacy in Public or in full
view (sidewalks, parks, beaches, stores,
restaurants, etc.)
An intrusion suit cannot be based on the recording
of activities that took place in public
Disclosure of private facts
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Private:
The Highly Offensive Disclosure Standard
The Newsworthiness Standard
Legitimate Public Interest
Humiliation for Its Own Sake
Facts from the Past
Highly Offensive
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Physical disorder
Unusual sexual practices
Bizarre personal habits
Free speech and the right to privacy
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Nicole "Nikki" Catsouras
The accident and the photos
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Nikki Catsouras was traveling her father’s Porsche 100
mph onear Lake Forest, Calif., when she clipped another
car and lost control, slamming into a concrete tollbooth,
killing her instantly.
The pictures, taken by California Highway Patrol officers
and e-mailed outside the department, spread around the
Internet, making their way to about 1,600 Web sites,
according to an investigator hired by family.
See a report on ABC 20/20 at:
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http://abcnews.go.com/Video/playerIndex?id=3979266
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The case: The Superior Court (County
of Orange, CA)
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Catsouras family sued the California Highway Patrol for
invasion of privacy.
In 2008, Judge Steven L. Perk dismissed the case. He
stated that the CHP officers were not under any
responsibility for protecting the privacy of the Catsouras
family.
The appeal
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On February 1, 2010, the California Court of
Appeal for the Fourth District had reversed Judge
Perk's grant of summary judgment, and instead
ruled that the Catsouras family did have the
right to sue the defendants for negligence and
intentional infliction of emotional distress.
The appeal and settlement
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On May 25, 2011, the California Court of Appeal
for the Fourth District ruled that the CHP failed
to prove that e-mailing the photographs is
covered by the First Amendment.
On January 30, 2012, the CHP reached a
settlement with the Catsouras family, under
which the family received around $2.37 million in
damages.
Facts from the Past
The "Red Kimona" case
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Red Kimona film (1925)
was written and produced
by Dorothy Davenport
Reid, a feminist filmmaker
during the silent movie
period. It presented the
true story of a former
prostitute Gabrielle Darley
who was charged with
murder and found
innocent.
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The "Red Kimona" case
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In 1918, Darley married a high society figure Bernard
Melvin and she abandoned her old life.
When the movie came out in 1925, Mrs. Melvin (Darley)
sued for $50,000 and won in California court.
The movie producers argued that all the facts of the case
were true and open in court records.
The court said: "Any person living a life of rectitude has
that right to happiness which includes a freedom from
unnecessary attacks on his character, social standing, or
reputation."
The "Red Kimona" case
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Important: the case shows earlier approaches
of the court. Today the plaintiff would not
prevail.
1. Information for the movie taken from public
records
2. There was other material widely available
3. The Darley case would be considered
newsworthy
Reminder: Four Torts
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Commercial appropriation of name or
likeness
Public disclosure of embarrassing private
facts
Placing an individual in a false light
Intrusion upon physical seclusion
Placing an individual in a false light
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Distortion (out of context)
Embellishment (changing the context)
Fictionalization
Distinguished from defamation by the “damages:”
False Light damages are not to reputation, but
personal embarrassment and anguish
Distortion (out of context)
Leverton v. Curtis Publishing Co., 1951,
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The plaintiff in 1947, when she was a child of ten, was
involved in a street accident in the city of Birmingham,
Alabama. A motor car nearly ran over her.
The photograph of the child being lifted to her feet by a
woman bystander appeared in a newspaper the day
following.
Twenty months later it was used by the Curtis Publishing
Co. as an illustration for an article on traffic accidents,
with emphasis on pedestrian carelessness, under the title,
"They Ask To Be Killed"
Embellishment (changing the context)
Cantrell v. Forest City Publishing Co 1974
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When a reporter pretended to have interviewed
widow of man killed in bridge collapse, describing
her face and talking about her courage in refusing
charity, and yet had never bothered to interview
her, the court said he had acted with malice, that
is, knowingly publishing something false.
Reminder: Four Torts
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Commercial appropriation of name or
likeness
Public disclosure of embarrassing private
facts
Placing an individual in a false light
Intrusion upon physical seclusion
Intrusion
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It is illegal to intrude, physically or otherwise,
upon the seclusion or solitude of an individual
in a manner that would be offensive
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Purpose of the information gathering
Means of information gathering: cameras,
hidden recording devices, false pretenses
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Protection from unwanted observation
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The main issue here is not the publication,
but the process of gathering information
Intrusion and Expectation of Privacy
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A reasonable expectation of privacy exists in a
private residence, hospital, hotel room, private
office etc.
No Expectation of Privacy in Public or in full
view (sidewalks, parks, beaches, stores,
restaurants, etc.)
An intrusion suit cannot be based on the recording
of activities that took place in public
Miller v NBC 1986.
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Paramedic arrived at Mr. Miller’s home. Camera
crew followed all the way to the bedroom filming
the resuscitation without obtaining consent from
Miller’s wife or anyone else.
CONSIDERED INTRUSION
Mark v King Broadcasting 1980.
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A television station followed a story about
criminal charges against a local pharmacist and
filmed him through the window during the usual
business hours.
NO INTRUSION. The person could have been
seen by any passerby.
Shulman v. Group W Productions 1998.
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In a case settled before it could reach the
Supreme Court, the California Supreme
Court determined in Shulman v. Group W
Productions that a car-accident victim had a
reasonable expectation of privacy once she
was inside a medical helicopter.
CONSIDERED INTRUSION
Dietemann v Time 1971
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Life Magazine reporters entered Dietemann’s
house under false pretenses of being in need of
medical help. Their true intention was to
investigate Dietemann who was a quack (minerals,
herbs, etc.).
Dietemann won mostly because of expectation of
privacy in his own home. Especially because the
reporters used eavesdropping devices in his
private den.
Intrusion and the Internet
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There is no expectation of privacy when
information is voluntarily made accessible to
another person or placed in the flow of commerce