Intellectual Property “Torts”
(the law about civil infringements that lead to liability)
Rights of Publicity
Rights of Privacy
Defamation
No single law on any of the
three areas of interest
• Amendments to the constitution (1st,
4th, 5th, 14th) are often invoked.
• Over half the states have laws, but they
sometimes organize the three
differently.
Warren and Brandeis, 1890
• Samuel D. Warren and future Supreme Court
Justice Louis D. Brandeis wrote a Harvard Law
Review article in which they argued that the
Constitution, though never stating so directly,
offers a “right to be left alone.”
• This and related ideas turned into the “right to
privacy,” the “right to retreat from the world”
– and in those days, the right to escape the excesses of
yellow journalism.
Common Law Claims
(that are then broken out among the three areas)
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Intrusion upon seclusion
Public disclosure of private facts
False light in the public eye
Appropriation of name/likeness/etc.
Intrusion Upon Seclusion
•
Unauthorized intrusion or prying into
plaintiff’s seclusion;
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•
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Intrusion offensive or objectionable to a
reasonable person;
Matter upon which intrusion occurs must
be private;
Intrusion causes anguish or suffering.
Video Surveillance --Catching a Thief Can Come with a Price
May 1, 2000
Employees’ rights to privacy vary from jurisdiction to jurisdiction based on the applicable
state statutes and constitutions. However, identifying factors considered by courts as
important may provide guidance for avoiding privacy-related problems in all jurisdictions.
Factual Background – A company, responding to thefts from its nurse manager’s office,
installed a security camera concealed behind ceiling tiles. Nine days after its installation,
the camera recorded an employee going through a desk. That employee was confronted
with the videotape and was terminated from his employment. Although the installers of the
security camera claimed ignorance, the nurse manager’s office was used at times for
medical treatment. Employees who may have been videotaped during medical treatment
sued seeking damages based on a theory of intrusion upon seclusion.
Legal Implications – In Illinois, for example, a question was raised whether the tort of
intrusion upon seclusion was legally cognizable. Relying in large part on a privacy
provision within the Illinois State Constitution, a federal district court applying Illinois law
held that, "although the Illinois Supreme Court might not adopt the tort of intrusion upon
seclusion to remedy every type of offensive intrusion in the workplace, this Court finds
that the supreme court would, at a minimum, adopt this tort as a potential remedy for an
employee who was surreptitiously videotaped by his employer while receiving medical
treatment in the workplace." Acuff v. IBP, Inc., (C.D. Ill. 1999).
http://www.hklaw.com/id24660/PublicationId1772/ReturnId31/contentid47881/
Public Disclosure of Private
Fact
A liable to B for giving publicity to a
matter concerning the private life of B,
if the matter publicized is the kind that:
• Would be highly offensive to a
reasonable person, and
• Is not of legitimate concern to the
public
The instant message blinked on the computer at Jessica
Cutler’s desk in the Russell Senate Office Building. “Oh my
God, you’re famous. Your blog is on Wonkette,” the
message said.
Jessica's blog was the online diary she had been posting
anonymously to amuse herself and her closest girlfriends.
In it, she detailed the peccadilloes of the men she said
were her six current sexual partners, including a married
Bush administration official who met her in hotel rooms and
gave her envelopes of cash; a senator's staff member who
helped hire her, then later bedded her; and another man
who liked to spank and be spanked.
Jessica was officially fired for misusing an office computer, but
the men she wrote about kept their jobs. What they lost
was their privacy. Jessica's blog identified them only by
their initials. But amateur Internet sleuths who read the blog
searched electronic databases looking for likely suspects,
then posted names and photographs on the Internet.
Jessica still refuses to name the men publicly.
Opps.
Time to discuss those exceptions
Exceptions
• News, commentary, satire, critique, and some other
forms of speech are protected when the information
can be interpreted to be within the public’s right to
know. News and information of public interest, even
when about public figures with a lot at risk, is
generally treated as outside the realm of protection
under rights of publicity.
• Images of public buildings
• Images of people at news events
• Sometimes (and in some jurisdictions) “parodies”
and/or “artistic renderings” of otherwise protected
personae.
Probably not in the public’s
interest: Bubba the love sponge
Oct. 9, 2006
An internet porn model, Hope Miller (her porn star
name is Brooke Skye) is suing Bubba the Love
Sponge for $150,000 over a sex segment performed
on his SIRIUS Satellite Radio show back in June
The suit alleges that Miller was forced to perform a
sex act with another porn star using a sex toy - one
that she claims was too big. The suit also claims that
Miller wasn't informed about the stunt ahead of time,
and despite her objections, Bubba berated her into
continuing.
•
http://www.orbitcast.com/archives/bubba-the-love-sponge-suedover-sex-segment.html
•CLAIM V – INVASION OF PRIVACY – PUBLIC DISCLOSURE OF PRIVATE FACT
•(Defendants Bubba, Bubba The Love Sponge Show Staff, Harrington, Silverman, Bubba
Radio Network, Inc.)
•86. Plaintiff realleges all of the allegations contained in the foregoing paragraphs, and
incorporates them herein by reference.
•87. Plaintiff did not agree or consent to participate in a sex act involving a “strap on”
dildo on the Bubba the Love Sponge radio show on or about June 12, 2006.
•88. Plaintiff informed Bubba that she did not want to participate in the sexual act with
Harrington, yet Bubba and his agents continually threatened and coerced Plaintiff and
ordered and allowed Harrington to perform the sex act on Plaintiff with the use of a “strap
on” dildo.
•89. Despite Plaintiff’s refusal to participate in the sex act and Defendants forcing her to
perform in the sex act, Defendants have disclosed the incident via the radio, Internet,
discussed it in chat rooms on the Internet, posted still photographs, and have otherwise
transmitted this occurrence to a significant number of persons.
•90. Plaintiff did not disclose this incident prior to or subsequent to the publication of the
act by Defendants.
•91. Disclosure of the incident is offensive and objectionable to a person of reasonable
sensibilities, given the fact that Plaintiff refused to participate in the sex act and
Defendants forced her to perform the sex act.
•92. As a direct and proximate result of Defendants' actions, Plaintiff has been injured in an
amount to be determined at trial, but believed to be in excess Fifteen Thousand Dollars
($15,000.00).
•http://www.brookeskyevbubbathelovesponge.com/
False Light in the Public Eye
• Publication of false fact to the public;
• Highly offensive to reasonable person;
• Causes damage to plaintiff.
Lawsuit alleges false light
Fired, re-hired employee takes claims to court
•
Months after she was fired and
then re-hired in a dispute
between her and UT's athletic
department, Suzette Fronk is
suing the university for placing
her in a false light.
•
Fronk, UT assistant athletic
director for business affairs,
questioned spending patterns in
the department and was then,
she says, fired for it.
Fronk was originally fired on May 15 as a "result of the reorganization related to the
merger of the University of Toledo and Medical University of Ohio," according to the
letter she received from UT's human resources department.
The ensuing comments repeatedly published in The Blade "were false and placed Fronk
in a false light in the public eye," according to the claim filed at Ohio's Court of Claims.
The comments in question pertain to those by UT Athletic Director Mike O'Brien
through an e-mail conversation with Joseph H. Zerbey, IV, Blade vice president and
general manager, printed during The Blade's coverage of her discontinued employment
and university spending in the athletics department.
In the e-mail that was sent in July, O'Brien wrote that Fronk was "eliminated" because
she was the "ultimate disgruntled employee" and that "she was a tremendous blow to
our morale among other things."
In a press release afterward, O'Brien said he had "mischaracterized" the situation when
he wrote the e-mail.
Fronk was re-hired to her position in mid-July at the request of UT President Lloyd
Jacobs.
Defamation Suit: Courtney Love
Fashion designer Dawn Simorangkir, also known as "Boudoir Queen," filed a lawsuit
against celebrity Courtney Love, alleging that she libeled her through a series of Twitter
posts made earlier this month."Whether caused by a drug induced psychosis, a warped
understanding of reality, or the belief that her money and fame allowed her to disregard
the law, Love has embarked in what is nothing short of an obsessive and delusional
crusade to terrorize and destroy Simorangkir," the complaint alleges. The case was filed
in Los Angeles Superior Court.While the case might mark the first Twitter lawsuit, it likely
won't be the last. Clearly, it's possible to defame someone in very few words. And Twitter
users can broadcast what's on their minds without even taking the time to turn on a
computer -- leading the Independent to say Twitter can pose "a serious disadvantage for
those of a belligerent disposition" in an article about the lawsuit.
In this case, the comments were posted over several days, so it's not clear that Twitter's
speediness made any difference. Among other statements, Love allegedly tweeted on
March 17 that Austin police "are more than ecstatic" to pick up Simorangkir because she
"has a history of dealing cocaine, lost all custody of her child, assault and burglary."Later
that day, Love allegedly wrote that Simorangkir "owes me over 40k and a million in
damages."The problems between the two appear to stem from a dispute about money.
Love allegedly commissioned more than $4,000 in custom-made clothing from
Simorangki, then refused to pay for the pieces. In addition to the defamation claims,
Simorangki is seeking damages for breach of contract.
Wendy Davis, Daily Online Examiner Monday, March 30, 2009
Right of Publicity Defined
• “[T]he inherent right of every human being to
control the commercial use of his or her
identity.”
– McCarthy, Right of Publicity, 2nd Ed., 2005, Vol. 1,
§1:3
• Note that this right adheres regardless of the
status of the person. However, since
celebrities can usually leverage their
personae for value, fussing over this right
usually involves famous people.
Right of Publicity Defined
PROTECTED ASPECTS OF PERSONA
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Name
Likeness
Distinctive Voice
Style
Role – If synonymous with actor
Nicknames
– “Crazy-Legs Hirsch”
– “Here’s Johnny Porta-potties”
Appropriation of Name or
Likeness
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•
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Name or likeness of plaintiff;
Appropriated by defendant;
For some advantage, usually
commercial.
By Samuel Maull, Associated Press
NEW YORK — 50 Cent has sued Taco Bell, claiming the fastfood restaurant chain is using his name without permission in
advertising that asks him to call himself 99 Cent. The rapper
says in a federal lawsuit filed Wednesday that the Mexicanthemed chain features him in a print ad asking him to change
his name to 79 Cent, 89 Cent or 99 Cent. His real name is
Curtis Jackson.
The rapper's court papers say the ad is part of Taco Bell's "Why
Pay More?" campaign, which promotes items for under a
dollar, including Cinnamon Twists for 79 cents, Crunchy
Tacos for 89 cents and Bean Burritos for 99 cents. The
papers say the Irvine, Calif.-based company sent a bogus
letter requesting the name change to the news media but not
to the rapper.
The rapper's lawyer, Peter D. Raymond, said his client didn't
learn about the letter or that he was featured in the ad
campaign until he saw a news report about it. Raymond said
his client is seeking $4 million in damages.
Taco Bell Corp. spokesman Rob Poetsch issued a statement
saying: "We made a good faith, charitable offer to 50 Cent to
change his name to either 79, 89 or 99 Cent for one day by
rapping his order at a Taco Bell, and we would have been
very pleased to make the $10,000 donation to the charity of
his choice."
Illinois Right of Publicity Act
• 765 ILCS 1075/1
• Effective as of 1-1-1999
• Protects the right to control and to chose whether and
how to use one’s individual identity for commercial
purposes
• Requires written consent to use an individual’s
identity for commercial purposes
• Continues for 50 years after death
Illinois Right of Publicity Act
• EXCEPTIONS:
– Portray, describe or impersonate individual in live
performance or other literary or artistic manner;
– Non-commercial use (news, public affairs, sports broadcast,
political campaign);
– Identifying individual truthfully as author of work or program
or performer;
– Promotional materials for the above-referenced;
– Professional photographers who display work at their shops
(unless otherwise notified of objection).
Rights of publicity cases
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CBC. Distribution and Marketing, Inc. v. MLB Adv. Media, L.P., F.3d
(8th Cir. 2007): Saves “fantasy” leagues of all kind (not controlled by
the leagues). On June 2, 2008, the US Supreme Court refused to hear
MLB’s appeal, thereby maintaining the public domain status of statistics
and players’ names in the fantasy league context.
KNB Enters. v. Matthews, 78 Cal. App. 4th 362 (Cal. Ct. App. 2000).
Goes to trial because copyright law does not “trump” rights of publicity
law in this case (KNB didn’t have copyrights) AND because KNB
probably misused images without rights.
Carafano v. Metrosplash.com Inc., 207 F. Supp. 2d 1055 (C.D. Cal.
2002). (1) Content providers like Metrosplash do NOT get ISP safe
harbor protection; (2) since Masterson is a celebrity, the defamation
standard is higher than for a private citizen (actual malice)
Perfect 10, Inc. v. CCBill LLC, 481 F.3d 751 (9th Cir. 2007). ISPs get
safe harbor here.
Pesina v. Midway Mfg. Co., 948 F. Supp. 40 (N.D. Ill. 1996). Noncelebrities can’t claim ROP violations on the grounds of use of
celebrity.
Rights of publicity cases
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Ahn v. Midway Mfg. Co., 965 F. Supp. 1134 (N.D. Ill. 1997). Copyright
law does trump here. Midway had acquired the copyright suite of rights.
Michaels v. Internet Entm’t Group, Inc., 5 F. Supp. 2d 823 (C.D. Cal.
1998). If you don’t really own my sex tape, you can’t plaster it all over
the interwebthingienet.
Bosley v. Wildwett.com, 310 F. Supp. 2d 914 (N.D. Ohio 2004). Bosley
got the injunction. But only after the tapes and the website were out of
Pandora’s box. And beware: There are cases (such as Borat) in which
participants sign releases they don’t later want to live with.
Stern v. Delphi Internet Servs. Corp., 626 N.Y.S. 2d 694 (1995). If it’s
news, it bleeds.
Brown v. ACMI Pop, N.E.2d (Ill. App. Ct. Aug. 2, 2007). This case is still
hung up in proceedings. The law change did not go through. Big
implications for stock photo businesses.
Rights of privacy cases
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Steve Jackson Games v. U.S. Secret Service (1993). Moral of the
story: Prepping materials for use in a book can sometimes protect one
from search and seizure.
State ex rel. Macy v. One Pioneer CD-ROM Changer (1993) and Davis
v. Gracey, Unless the amount for print publication is only a little of the
potentially illegal rest of the stuff.
CompuServe v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio,
C2–96–1070, 1997)Cyber Promotions, Inc. v. America Online, Inc., 948
F. Supp. 436 (E.D. Pa.1996). Very important cases allowing ISPs to
block spam without violating the privacy rights of the spammers.
Smyth v. Pillsbury Corp.,. Shoars v. Epson America, Inc., Flanagan v.
Epson America, Inc. Email is NOT protected as private speech.