March 31, 2008

Right To Privacy: Invasion of Privacy -- Misappropriation For Commercial use

The common-law right of privacy is said to protect against four types of invasion of privacy:

    (1) intrusion upon the plaintiff's seclusion or solitude, or into his private affairs;

    (2) public disclosure of embarrassing private facts about the plaintiff;

    (3) publicity that places the plaintiff in a false light in the public eye; and

    (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness. [Ruffin-Steinback v. dePasse, 82 F.Supp.2d 723, 728 (E.D.Mich.2000), aff'd 267 F.3d 457 (6th Cir. 2001)]

In an influential article, Dean Prosser delineated four distinct types of the right of privacy: (1) intrusion upon one's seclusion or solitude, (2) public disclosure of embarrassing private facts, (3) publicity which places one in a false light, and (4) appropriation of one's name or  likeness for the defendant's advantage. Prosser, Privacy, 48 Calif.L.Rev. 383, 389 (1960). This fourth type has become known as the "right of publicity." Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 220 (2d Cir. 1978), cert. denied, 440 U.S. 908, 59 L. Ed. 2d 455, 99 S. Ct. 1215 (1979); see Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 572, 53 L. Ed. 2d 965, 97 S. Ct. 2849 (1977). Henceforth we will refer to Prosser's last, or fourth, category as the "right of publicity." Ruffin-Steinback, 82 F.Supp.2d at 728-729 (citing Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831, 834 (6th Cir. 1983)).

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Restatement of the Law, Second, Torts, § 652

Copyright (c) 1977, The American Law Institute

§ 652B Intrusion Upon Seclusion
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Comments:
a.  The form of invasion of privacy covered by this Section does not depend upon any publicity given to the person whose interest is invaded or to his affairs. It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man.
b.  The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.

§ 652C Appropriation of Name or Likeness
One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.

Comments:
a.  The interest protected by the rule stated in this Section is the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others. Although the protection of his personal feelings against mental distress is an important factor leading to a recognition of the rule, the right created by it is in the nature of a property right, for the exercise of which an exclusive license may be given to a third person, which will entitle the licensee to maintain an action to protect it.
b.  How invaded.  The common form of invasion of privacy under the rule here stated is the appropriation and use of the plaintiff's name or likeness to advertise the defendant's business or product, or for some similar commercial purpose. Apart from statute, however, the rule stated is not limited to commercial appropriation. It applies also when the defendant makes use of the plaintiff's name or likeness for his own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one. Statutes in some states have, however, limited the liability to commercial uses of the name or likeness.

§ 652D Publicity Given to Private Life
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a)  would be highly offensive to a reasonable person, and
(b)  is not of legitimate concern to the public.

Special Note on Relation of § 652D to the First Amendment to the Constitution.  This Section provides for tort liability involving a judgment for damages for publicity given to true statements of fact. It has not been established with certainty that liability of this nature is consistent with the free-speech and free-press provisions of the First Amendment to the Constitution, as applied to state law through the Fourteenth Amendment. Since 1964, with the decision of New York Times Co. v. Sullivan, 376 U.S. 254, the Supreme Court has held that the First Amendment has placed a number of substantial restrictions on tort actions involving false and defamatory publications. These restrictions are treated in Division Five of this Restatement. See especially §§ 580A, 580B and 621.

The Supreme Court has rendered several decisions on invasion of the right of privacy involving this Section and § 652E. The case of Cox Broadcasting Co. v. Cohn (1975) 420 U.S. 469, holds that under the First Amendment there can be no recovery for disclosure of and publicity to facts that are a matter of public record. The case leaves open the question of whether liability can constitutionally be imposed for other private facts that would be highly offensive to a reasonable person and that are not of legitimate concern.

Pending further elucidation by the Supreme Court, this Section has been drafted in accordance with the current state of the common law of privacy and the constitutional restrictions on that law that have been recognized as applying.

Comments:
a.  Publicity.  The form of invasion of the right of privacy covered in this Section depends upon publicity given to the private life of the individual. "Publicity," as it is used in this Section, differs from "publication," as that term is used in § 577 in connection with liability for defamation. "Publication," in that sense, is a word of art, which includes any communication by the defendant to a third person. "Publicity," on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public.

Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity within the meaning of the term as it is used in this Section. The distinction, in other words, is one between private and public communication.

COMMENTS

Intrusion into seclusion has been my main problem as a novelist where a woman running a workstation with a neural net has been making shared impressions all day/every day so that: I am not able to be productive in my career. My desk space has been invaded by a virtual environment with people looking over my shoulders or typing along. My literary career is discussed by these hidden participants, and my face has been defaced in the mirror while someone looks through: the theme of stealing one's face for commercial gain is also evident. How can I protect my right to privacy and secure my desk space from this invasive presence: an intrusion into my seclusion?

Privacy rights need to be protected. Defamation law in Michigan leans too far towards the First Amendment, and too far away from the right to privacy.

Defamation is always a tricky issues under the first amendment. The right of publicity or moral rights are a little easier to understand. When broadcasting media, you need to make sure you have obtained rights necessary to use someone else's likeness.

In the mid to late 1970's I worked for a famous artist. While employed, I took photographs of this person at work with others in his studio and in public places. While employed there, two of my photographs were published and I received credit as the photographer. There was no policy against taking photographs nor were these images deemed property of anyone but me and I used my own camera and film. Around 1995, one of the photographs was used in a book by the artist and he obtained my written consent, gave me credit and paid me for the usage. A few years ago, this artist died. There is a foundation in his name that disseminates his work etc. I would like to publish a book of photographs of this artist with some written reminiscences. Most likely, his name would be included in the title. Are there any legal constraints against doing this?

Famous & Celebrity Names Are Protected. But you don't have to be a famous celebrity to have a potential claim.

Pertaining to the right of publicity, one who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for the purposes of trade is subject to liability. The name, likeness, and other indicia of a person's identity are used "for the purposes of trade" if they are used in advertising the user's goods or services, or are placed on merchandise marketed by the user, or are used in connection with services rendered by the user. However, use "for the purposes of trade" does not ordinarily include the use of a person's identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses.

In Michigan, the common-law right of privacy is said to protect against four types of invasion of privacy: (1) intrusion upon the plaintiff's seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant's advantage, of the plaintiffs name or likeness. This fourth category of invasion of privacy - misappropriation of a person's name or likeness - has become known as the "right of publicity." This "right of publicity" differs from the first three types of the right to privacy; rather than the protection of a person's right "to be left alone," this right protects an individual's pecuniary interest in the commercial exploitation of his or her identity.

The Michigan Supreme Court has recognized a tort action for the appropriation of one's name or likeness for the defendant's commercial advantage. See Pallas v. Crowley, Milner & Co., 322 Mich. 411, 416, 33 N.W.2d 911, 913 (1948) [**31] (concluding "that there are circumstances under which one may have a right of privacy in a photographic likeness which may [*643] give rise to an action for damages for the unauthorized publication thereof"); see also Ruffin-Steinback v. dePasse, 82 F. Supp. 2d 723, 728 (E.D. Mich. 2000), aff'd 267 F.3d 457 (6th Cir. 2001) (noting that "the Michigan Supreme Court has recognized a tort-claim for the invasion of a right to privacy that includes misappropriation of a person's name or likeness") (footnote omitted).

The dissent contends that the authorities hold that the right of publicity is invaded only if there has been an appropriation of the celebrity's "name, likeness, achievements, identifying characteristics or actual performances." After so conceding that the right is at least this broad, the dissent then attempts to show that the authorities upon which the majority opinion relies are explainable as involving an appropriation of one or more of these attributes. The dissent explains Motschenbacher, supra, where the advertisement used a photograph, slightly altered, of the plaintiff's racing car, as an "identifying characteristic" case. But the dissent fails to explain why the photograph any more identified Motschenbacher than the phrase "Here's Johnny" identifies appellant Carson. The dissent explains Hirsch, supra, by pointing out that there the use of the appellation "Crazylegs" by the defendant was in a "context" that suggested a reference to Hirsch and that therefore Hirsch was identified [**16] by such use. Here, the dissent states, there is no evidence of the use of "Here's Johnny" in such a suggestive "context." Putting aside the fact that appellee also used the phrase "The World's Foremost Commodian," we fail to see why "context" evidence is necessary where appellee's president admitted that it adopted the name "Here's Johnny" because it identified appellant Carson. We do not understand appellee to even contend that it did not successfully accomplish its intended purpose of appropriating his identity. The dissent explains Ali, supra, by pointing out that in that case the magazine used a drawing that "strongly suggests" it to be a representation [*837] of the famous fighter, but it is also true that the court put emphasis on the fact that the subject of the drawing was referred to as "The Greatest," which "further implied" that the individual was Ali. 447 F. Supp. at 726-727.

It should be obvious from the majority opinion and the dissent that a celebrity's identity may be appropriated in various ways. It is our view that, under the existing authorities, HN4Go to the description of this Headnote.a celebrity's legal right of publicity is invaded whenever his identity is intentionally appropriated for commercial [**17] purposes. We simply disagree that the authorities limit the right of publicity as contended by the dissent. 3 It is not fatal to appellant's claim that appellee did not use his "name." Indeed, there would have been no violation of his right of publicity even if appellee had used his name, such as "J. William Carson Portable Toilet" or the "John William Carson Portable Toilet" or the "J. W. Carson Portable Toilet." The reason is that, though literally using appellant's "name," the appellee would not have appropriated Carson's identity as a celebrity. Here there was an appropriation of Carson's identity without using his "name."

Post a comment

Comments are moderated, and will not appear on this weblog until the author has approved them.

If you have a TypeKey or TypePad account, please Sign In.

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d834208fd253ef00e5519d5b4c8834

Listed below are links to weblogs that reference Right To Privacy: Invasion of Privacy -- Misappropriation For Commercial use:

Official Trademark Clearinghouse Agent

Copyright Infringement & Internet Defamation Blog Homepage: Copyright Infringment Lawyer, Internet Defamation, and Internet Privacy

ARCHIVES

Domain attorney recommended by Domaining.com
© 2011 Traverse Legal, PLC. All Rights Reserved.
Traverse Legal on LinkedInTraverse Legal on FacebookTraverse Legal on Twitter
Events & Conferences:
  • International Trademark Association 2011, San Francisco, California
  • Cyber Law Summit 2011, Las Vegas, Nevada
  • Game Developers Conference 2011, San Francisco, California
  • DOMAINfest 2011, Santa Monica, California
Recent Attorney Speaking Engagements:
  • South By Southwest 2010 SXSW Interactive Conference, Austin, Texas
  • West LegalEdcenter Midwestern Law Firm Management, Chicago, Illinois
  • Internet Advertising under Part 255, Altitude Design Summit, Salt Lake City, Utah
  • Online Defamation and Reputation Management, News Talk 650 AM, The Cory Kolt Show, Canada Public Radio Saskatewan Canada
  • Alternative Fee Structures, Center for Competitive Management, Jersey City, New Jersey
  • FTC Part 255 Advertising Requirements, Mom 2.0 Conference, Houston, Texas
  • Webmaster Radio, Cybersquatting & Domain Monetization, Fort Lauderdale, Florida
Notable Complex Litigation Cases Handled By Our Lawyers:
  • Trademark Infringement, Milwaukee, Wisconsin
  • Cybersquatting Law, Trademark Law and Dilution Detroit, Michigan
  • Internet Defamation & Online Libel Indianapolis, Indiana
  • Trade Secret Theft, Chicago, Illinois
  • Cybersquatting Law, Anticybersquatting Consumer Protection Act Miami, Florida
  • Cybersquatting Law, Anticybersquatting Consumer Protection Act Eastern Dist. of Virginia, Alexandria
  • Stolen Domain Name, Orlando, Florida
  • Commercial Litigation, Tampa, Florida
  • Copyright Infringement and Cybersquatting Law, Grand Rapids, Michigan
  • Mass Tort Litigation, Los Angeles, California
  • Stolen Domain Name, Detroit, Michigan
  • Adwords Keyword Trademark Infringement, Los Angeles, California
  • Trademark Infringement & Unfair Competition, Boston, Massachusetts
  • Non-Compete Agreement and Trade Secret Theft, Detroit, Michigan
  • Mass Tort, Philadelphia, Pennsylvania
  • Mass Tort, Tyler, Texas
  • Insurance Indemnity, New York
  • Copyright Infringement, Detroit, Michigan