Copyright Infringment Lawyer, Internet Defamation, and Internet Privacy: Right To Privacy: Invasion of Privacy -- Misappropriation For Commercial use

« Court Dismisses Case Brought By Wal-Mart Against Gripe Site Defendant: Case Likely Drives More Internet Traffic To The Gripe Site. | Main | Michigan Governor Granholm Signs Film Incentive Package: Tax Breaks For Films Made In Michigan »

March 31, 2008


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."

The comments to this entry are closed.