Privacy

Question 1

Is a right to privacy recognized in the consitution?

Answer 1

NO; it is implied

Question 2

Four areas of privacy law

Answer 2

1) public disclosure of private fact
2) Intrusion upon seclusion
3) appropriation and publicity
4) false light (NOT ON EXAM)

Question 3

Privacy rights are only avaialble to:

Answer 3

Natural persons (human beings)

NOT available to companies or other entities

Question 4

Public disclosure of private fact focus on ________.

Answer 4

WHAT is published

Question 5

Public discolure of Private Fact elements

Answer 5

1) publicity
2) to a private fact
3) legitimate public concern
4) highly offensive

Question 6

Does events in public view qualify under Public discolure of Private Fact?

Answer 6

NO

Question 7

Public discolure of Private Fact elements: Publicity

Answer 7

must be dissementiated to the public at large or enough eprsons that the matter becomes public knowledge

Question 8

Public discolure of Private Fact: Legitimate public concern

Answer 8

Disclosure must involve a privat matter that is of NO legitimate interest to the public

• public importance can trump offensiveness

Question 9

Legitimate public conern Balancing test:

Answer 9

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

Question 10

Public discolure of Private Fact: Highly offensive standard

Answer 10

reasonable person

Question 11

Intrusion Upon Seclusion definiton

Answer 11

Prohibits physical and other intrusions upon the seclusion or rivate affairs of others if that intrusion woul dbe highly offensive to a reasonable person

Question 12

Intrusion Upon Seclusion definiton focuses on ____________.

Answer 12

HOW the information is gathered

Question 13

does intrusion have to be physical?

Answer 13

NO

Question 14

Intrusion Upon Seclusion Examples

Answer 14

• 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

Question 15

Intrusion Upon Seclusion: Private and offensive definition

Answer 15

Things or place into whihc intrusion has been made must ordinarilly be private

Question 16

Intrusion Upon Seclusion: are public places protected?

Answer 16

NO

Question 17

Intrusion Upon Seclusion: Highly offensive Standard

Answer 17

reasonable person

Question 18

Intrusion Upon Seclusion: Private and Offensive Legal Test:

Answer 18

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

Question 19

Appropriation and Publicity definition

Answer 19

One cannot use another’s identity for commerical use or trade purposes without consent

Question 20

Types of Appropriation and Publicity

Answer 20

1) right to Privacy (feelings)

2) right to publicity (Money)

Question 21

The Right to publicity protects ________.

Answer 21

Property Rights

Question 22

TEXAS: Are property rights (right to publicity/$) assignable?

Answer 22

YES; may pass on to heirs or assign at death

Question 23

Appropriation and Publicity: What is prohibited?

Answer 23

Cannot use a persons identity, name, or likeness for commerical use

Question 24

Appropriation and Publicity: Likeness definition

Answer 24

anything (photograph, painting, sketch, voice, etc.) that would suggest to readers taht the π is identified

Question 25

Appropriation and Publicity: Celebrity look alikes

Answer 25

NOT okay

Question 26

Appropriation and Publicity: Commerical purpose definition

Answer 26

∆ must be seeking to obtain some level of monetary advantage

Question 27

Appropriation and Publicity: consent

Answer 27

Defense to appropration

If you have consent, the no claim

Question 28

Appropriation and Publicity: consent exceptions

Answer 28

1) dated consent (particularly old)
2) capacity (lacking)
3) substantially alterations from image upon which consent was orgianlly granted

Question 29

Justifications for Right of Publicity

Answer 29

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

Question 30

1st Amendment Counter Arguments

Answer 30

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

Question 31

Appropraition only applies to _________.

Answer 31

commerical products

Question 32

Appropriation and Publicity: transformative Test

Answer 32

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

Question 33

Appropriation and Publicity: whether work is substantially tranformative:

Answer 33

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

Question 34

Appropriation and Publicity: What is protected by the 1st?

Answer 34

A reproduction that contains significatn creative elements is entitled to as much 1st amendment protection as an original work of art

Question 35

Appropriation and Publicity: Waiver and Release

Answer 35

Must have permission to defame someon

• Make sure clear and express