Copyright © 2010 – Jeffrey Pittman. Introduction The following slides expand the textbook...

IntroductionThe following slides expand the textbook

coverage of the topic “Invasion of Privacy”

Privacy Law - Jeffrey Pittman 2

A Right to PrivacyWriting 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

3Tort Law and Privacy - Jeffrey Pittman

Privacy Rights under the LawUS ConstitutionFederal Statutory Law –various

miscellaneous statutesState Constitutions & StatutesState Common Law

4Privacy Law - Jeffrey Pittman

State Common Law Privacy RightsThrough the common law process, state courts

have developed the following torts, providing additional privacy protections

Intrusion Upon SeclusionPublic Disclosure of Private Facts Causing

Injury to ReputationPublicity Placing Another in a False Light in

the Public eyeMisappropriation of a Person’s Name or

Likeness5Privacy Law - Jeffrey Pittman

IntrusionThis tort is an intrusion upon a person’s right

to seclusion or solitudeThere is liability only if the interference with

the plaintiff's seclusion is a substantial one, highly offensive to the ordinary reasonable personThe “offensiveness” of the intrusion is by

guided by whether a reasonable expectation of privacy was violated


False Light in the Public EyeThis 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


Public Disclosure of Private FactsThis 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


AppropriationHere 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


Case Example - AppropriationDoe 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


Case Example - AppropriationSpawn 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 speech11Privacy Law - Jeffrey Pittman

Case Examples - AppropriationVanna 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)


Case Example - AppropriationThe 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


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.”


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.”


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.”


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.”

17Jonah Hex

Johnny Winters

Privacy Law - Jeffrey Pittman

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.”


Winter v. D.C. ComicsIn 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


Copyright © 2010 – Jeffrey Pittman. Introduction The following slides expand the textbook...

Documents

Transcript of Copyright © 2010 – Jeffrey Pittman. Introduction The following slides expand the textbook...