Copyright © 2010 – Jeffrey Pittman
Introduction
 The following slides expand the textbook coverage of
the topic “Invasion of Privacy”
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A Right to Privacy
 Writing in the Harvard Law Review in 1890, Louis
Brandeis and Samuel Warren proposed that the courts
recognize a new legal right, the right to privacy
 The right to privacy, as proposed, was a basic right to
be left alone
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Privacy Rights under the Law
 US Constitution
 Federal Statutory Law –various miscellaneous statutes
 State Constitutions & Statutes
 State Common Law
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State Common Law Privacy Rights
Through the common law process, state courts have
developed the following torts, providing additional
privacy protections
 Intrusion Upon Seclusion
 Public Disclosure of Private Facts Causing Injury to
Reputation
 Publicity Placing Another in a False Light in the Public
eye
 Misappropriation of a Person’s Name or Likeness
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Intrusion
 This tort is an intrusion upon a person’s right to
seclusion or solitude
 There is liability only if the interference with the
plaintiff's seclusion is a substantial one, highly
offensive to the ordinary reasonable person
 The “offensiveness” of the intrusion is by guided by
whether a reasonable expectation of privacy was violated
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False Light in the Public Eye
 This tort involves the defendant revealing information
about a person that places that person in a false light.
A plaintiff here must demonstrate:
 The false light in which he was placed by the publicity
would be highly offensive to a reasonable person, and
 The defendant had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter and
the false light in which the plaintiff would be placed
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Public Disclosure of Private Facts
 This tort requires public disclosure of private
information about a person that, even though true,
generates publicity of a highly objectionable kind
 An example might be the disclosure of names and
details about employees fired for viewing pornography
at work
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Appropriation
 Here a defendant is charged with use of a person’s
name or likeness without permission
 This invasion of privacy would include activities such
as the unauthorized use of a person’s name in an
advertising campaign
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Case Example - Appropriation
Doe v. TCI Cablevision
110 S.W.3d 363 (Mo.
2003)
 A former professional
hockey player, Anthony
Twist, brought an action
against the creators and
publishers of a comic
book titled Spawn
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Case Example - Appropriation
 Spawn contained a villainous character "Tony Twist"
that is a Mafia don whose list of evil deeds includes
multiple murders, abduction of children and sex with
prostitutes
 The Missouri Supreme Court held that Twist
presented sufficient evidence that
 defendants used his name as a symbol of his identity, as required to
make submissible case for right-of-publicity tort,
 defendants used Twist’s name to attract consumer attention to their
products, and
 the use of Twist’s name was not protected speech
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Case Examples - Appropriation
Vanna White as a robot
(Ms. White prevailed in
her suit against Samsung
and its advertisement)
George Wendt as a robot
(Mr. Wendt won initial
battles against Host
International’s “Cheers”
bars)
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Case Example - Appropriation
 The Vanna White and George Wendt victories in
California were probably negated by a recent decision,
Winter v. D.C. Comics, 69 P.3d 473 (2003)
 There the California Supreme Court held that the
First Amendment overrides state tort law where an
individual’s name or likeness is involved in a
“transformative” use
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Winter v. D.C. Comics
 “Celebrities have a
statutory right of
publicity by which they
can prohibit others from
using their likeness. . . .
An obvious tension
exists between this right
of publicity and the First
Amendment to the
United States
Constitution.”
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Winter v. D.C. Comics
 “In [Comedy III
Productions, Inc. v.
Saderup], we considered
when constitutional free
speech rights may trump
the statutory right of
publicity.”
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Winter v. D.C. Comics
 “We formulated
"what is essentially a balancing test
between the First Amendment and the right of
publicity based on whether the work in question adds
significant creative elements so as to be transformed
into something more than a mere celebrity likeness or
imitation.
 In [Comedy III Productions, Inc. v. Saderup], we
concluded that lithographs and T-shirts bearing the
likeness of The Three Stooges were not sufficiently
transformative to receive First Amendment
protection.”
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Winter v. D.C. Comics
 “In this case, we apply
the same balancing test
to comic books
containing characters
that evoke musician
brothers Johnny and
Edgar Winter.”
Johnny
Winters
Jonah Hex
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Winter v. D.C. Comics
 “We conclude that, in contrast to a drawing of The
Three Stooges, the comic books do contain significant
creative elements that transform them into something
more than mere celebrity likenesses. Accordingly, the
comic books are entitled to First Amendment
protection.”
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Winter v. D.C. Comics
 In considering whether a work is “transformative,” The
California Supreme Court stated a relevant inquiry is
whether the transformed work has value independent
of the celebrity's fame, that is, value in its own right
 Andy Warhol pictures were used by the court as an
example of protected, transformative art
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