Copyright © 2010 – Jeffrey Pittman

Introduction The following slides expand the textbook coverage of the topic “Invasion of Privacy” Privacy Law - Jeffrey Pittman2

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 3 Tort Law and Privacy - Jeffrey Pittman

Privacy Rights under the Law US Constitution Federal Statutory Law –various miscellaneous statutes State Constitutions & Statutes State Common Law 4 Privacy Law - Jeffrey Pittman

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 5 Privacy Law - Jeffrey Pittman

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 6 Privacy Law - Jeffrey Pittman

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 7 Privacy Law - Jeffrey Pittman

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 8 Privacy Law - Jeffrey Pittman

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 9 Privacy Law - Jeffrey Pittman

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 10 Privacy Law - Jeffrey Pittman

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 11 Privacy Law - Jeffrey Pittman

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) 12 Privacy Law - Jeffrey Pittman

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 13 Privacy Law - Jeffrey Pittman

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.” 14 Privacy Law - Jeffrey Pittman

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. ” 15 Privacy Law - Jeffrey Pittman

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.” 16 Privacy Law - Jeffrey Pittman

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.” 17 Jonah 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.” 18 Privacy Law - Jeffrey Pittman

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 19 Privacy Law - Jeffrey Pittman