7 Defamation, IOP, & Business Torts Flashcards
Question 5975 (Mixed MBE PQ2)
A local sporting goods store created an advertisement that aired only on local television. The advertisement featured a video of the goods offered by the store along with phrases regarding the quality of the products, such as, “Best in the Area!” One portion of the advertisement featured a display of the boxing equipment offered by the sporting goods store. At the same time, a voice said, “If you want to be the best, you have to train like the best.” This slogan has been used by and is associated with a well-known professional boxer who grew up and continues to live in the area. The slogan appears on the boxer’s boxing shorts, and the voice in the advertisement sounded very much like that of the boxer. The advertisement was made without the boxer’s permission. When the boxer learned of the advertisement, he immediately brought an action against the sporting goods store for misappropriation of the right to publicity. He can establish that the advertisement has caused him the loss of endorsement income from another sporting goods store.
Will the boxer prevail?
A. You Selected: No, because the advertisement did not use the boxer’s name or picture.
B. No, because the advertisement was only shown on local television.
C. Yes, because the boxer can prove special damages.
D. Yes, because the boxer did not consent to the advertisement.
D. Yes, because the boxer did not consent to the advertisement.
Answer choice D is correct. Misappropriation of the right to publicity is based upon the right of an individual to control the commercial use of his own identity. The plaintiff must prove (i) the defendant’s unauthorized appropriation of the plaintiff’s name, likeness, or identity, (ii) for the defendant’s advantage, commercial or otherwise, (iii) lack of consent, and (iv) resulting injury. Frequently, commercial appropriation cases involve the use of the plaintiff’s name or picture, but this is not required. A television or radio production may simply mimic a plaintiff’s distinctive vocal patterns in order to incur liability. In this case, the sporting goods store used the boxer’s well-known slogan and mimicked his voice in their advertisement in order to gain more business. The advertisement was made without the boxer’s consent. Therefore, the boxer will prevail in his action.
Answer choice A is incorrect. The defendant need not use the plaintiff’s name or picture; a television production mimicking the plaintiff’s voice is sufficient for a claim of misappropriation of the right to publicity.
Answer choice B is incorrect. Limited publication does not limit liability for misappropriation of the right to publicity.
Answer choice C is incorrect. While the boxer’s economic loss clearly qualifies as special damages, special damages are not required to be established in a misappropriation of the right to publicity action.
Question 7270 (MBE Exam #3 PM)
A man was having an affair with a woman. The man and the woman had been seen together many times in public enjoying romantic dinners. One evening, when the man claimed to be going out with friends, his wife followed him. Instead of going to meet his friends, the man met the woman at a secluded restaurant. The two sat in a dark booth, and the wife snuck in and sat unseen in the booth next to them. During their conversation, which the wife recorded using her cell phone, the woman admitted that she was pregnant with the man’s child. The wife was so upset about the news that she ran out of the restaurant and forgot her cell phone. A waiter found the phone and gave it to his son, who sold used cell phones for a living. While clearing out the contents of the phone, the son discovered the recorded conversation between the man and the woman regarding her pregnancy. The son anonymously posted the recording on a popular video-sharing website. The woman’s attorney eventually figured out who posted the video. Now the woman wants to sue the son for invasion of privacy.
If all of the following torts are recognized in the relevant jurisdiction, which of the following causes of action would provide the woman with her best chance of recovery against the son?
A. Intrusion upon seclusion
B. Misappropriation of the right to publicity
C. Public disclosure of private facts
D. False light
C. Public disclosure of private facts
Answer choice C is correct. To recover for invasion of privacy based on the public disclosure of private facts, the plaintiff must show that (i) the defendant gave publicity to a matter concerning the private life of another and (ii) the matter publicized is of a kind that would be highly offensive to a reasonable person and is not of legitimate concern to the public. Here, the woman is pregnant with the child of a married man, and the son disclosed this information to the public. This fact is not of legitimate concern to the public, and a reasonable person would find it highly offensive to have this type of information publicly disclosed. Therefore, this tort is likely to succeed.
Answer choice A is incorrect. The defendant’s act of intruding, physically or otherwise, into the plaintiff’s private affairs, solitude, or seclusion if the intrusion is highly offensive to a reasonable person establishes liability under this cause of action. Here, the man’s wife, not the son, intruded into the private affairs of the woman by recording the private conversation. The son merely published the conversation.
Answer choice B is incorrect. The misappropriation of the right to publicity is the defendant’s unauthorized appropriation of the plaintiff’s name, likeness, or identity for the defendant’s advantage without the plaintiff’s consent, resulting in injury to the plaintiff. Here, there is no evidence to suggest that the son gained any type of advantage, commercial or otherwise. In fact, he posted the recording anonymously, so he is unlikely to be liable under this cause of action.
Answer choice D is incorrect. In order to prove false light, the plaintiff must show that the defendant (i) made public facts about the plaintiff that (ii) placed the plaintiff in a false light, (iii) which false light would be highly offensive to a reasonable person. Most jurisdictions also require that the plaintiff prove actual malice by the defendant. Here, the son did not act with malice. Additionally, it does not appear that publication of this conversation would have suggested any false implications about the woman. Therefore, this cause of action would likely fail.
DEFAMATION, INVASION OF PRIVACY, AND BUSINESS TORTS - Invasion of Privacy
