Privacy Flashcards
Is a right to privacy recognized in the consitution?
NO; it is implied
Four areas of privacy law
1) public disclosure of private fact
2) Intrusion upon seclusion
3) appropriation and publicity
4) false light (NOT ON EXAM)
Privacy rights are only avaialble to:
Natural persons (human beings)
NOT available to companies or other entities
Public disclosure of private fact focus on ________.
WHAT is published
Public discolure of Private Fact elements
1) publicity
2) to a private fact
3) legitimate public concern
4) highly offensive
Does events in public view qualify under Public discolure of Private Fact?
NO
Public discolure of Private Fact elements: Publicity
must be dissementiated to the public at large or enough eprsons that the matter becomes public knowledge
Public discolure of Private Fact: Legitimate public concern
Disclosure must involve a privat matter that is of NO legitimate interest to the public
- public importance can trump offensiveness
Legitimate public conern Balancing test:
1) ** social value of the facts published (public interest)
2) ** Depth of the articles intrusion into ostensibly private affairs
3) The extent to which the party volunutarily acceded to a position of public notoriety
NOTE: When a person is NOT a public figure, there must be a nexus between the first two elements
Public discolure of Private Fact: Highly offensive standard
reasonable person
Intrusion Upon Seclusion definiton
Prohibits physical and other intrusions upon the seclusion or rivate affairs of others if that intrusion woul dbe highly offensive to a reasonable person
Intrusion Upon Seclusion definiton focuses on ____________.
HOW the information is gathered
does intrusion have to be physical?
NO
Intrusion Upon Seclusion Examples
- entering a persons hom, hotel room, etc. w/o consent
- opening anothers mail
- tapping anothers phone
- intecepting cell phone conversations
- photography with a telephoto lense
- evesedropiing/hidden microphone
Intrusion Upon Seclusion: Private and offensive definition
Things or place into whihc intrusion has been made must ordinarilly be private
Intrusion Upon Seclusion: are public places protected?
NO
Intrusion Upon Seclusion: Highly offensive Standard
reasonable person
Intrusion Upon Seclusion: Private and Offensive Legal Test:
1) π mut have had an objectively reasonable expectation of seclusion or solitude in the place, conversation, or data source
- Not a complete, all-or- nothing approach
Appropriation and Publicity definition
One cannot use another’s identity for commerical use or trade purposes without consent
Types of Appropriation and Publicity
1) right to Privacy (feelings)
2) right to publicity (Money)
The Right to publicity protects ________.
Property Rights
TEXAS: Are property rights (right to publicity/$) assignable?
YES; may pass on to heirs or assign at death
Appropriation and Publicity: What is prohibited?
Cannot use a persons identity, name, or likeness for commerical use
Appropriation and Publicity: Likeness definition
anything (photograph, painting, sketch, voice, etc.) that would suggest to readers taht the π is identified
Appropriation and Publicity: Celebrity look alikes
NOT okay
Appropriation and Publicity: Commerical purpose definition
∆ must be seeking to obtain some level of monetary advantage
Appropriation and Publicity: consent
Defense to appropration
If you have consent, the no claim
Appropriation and Publicity: consent exceptions
1) dated consent (particularly old)
2) capacity (lacking)
3) substantially alterations from image upon which consent was orgianlly granted
Justifications for Right of Publicity
1) ECONOMIC
- provides incentives for creativity and achievement
promotes the efficial allocation of resources
- protects agaisnt consumer deception
2) NON-ECONOMIC
- stems from some notion of natural rightts
- allows celebs to enjoy fruits of their labor
- prevents unjust enrichment
prevents emotional injury
1st Amendment Counter Arguments
1) ECONOMIC
- less incentive where celebrities are already making money
- celebs have other ways to make money
- Lanham ACt already protects against consumer decption
2) NON-ECONOMIC
- blind appeals to “first principles” carry little weight
- celebs often not repsonsible for their fame
- singificantly creative componenet (should be able to profit from effort (Cardtoons))
- publicity rights protect against financial gain, not mental anguish
Appropraition only applies to _________.
commerical products
Appropriation and Publicity: transformative Test
Whether a product containing a celebrity’s likeness is so transformed that is hase become primarily the ∆’s own expression rather than the celebrity’s likeness
- courts NOt conerned with quality
Appropriation and Publicity: whether work is substantially tranformative:
1) Does the marketability and economic value of the challeneged work derive primarily from the fame of the celebrity depicted?
2) If not, then there would generally be no actionable right of publicity
Appropriation and Publicity: What is protected by the 1st?
A reproduction that contains significatn creative elements is entitled to as much 1st amendment protection as an original work of art
Appropriation and Publicity: Waiver and Release
Must have permission to defame someon
- Make sure clear and express
