torts II deck 16 Public Disclosure of Embarrassing Private Facts ~ False Light ~ Commercial Appropriation of Plaintiff’s Name or Likeness

Question 1

Publicity Given to Private Life– Restatement of the Law (Second) of Torts, p. 1062

Answer 1

One who gives publicity to a matter
Concerning the private life of another
Is subject to liability to the other for
Invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.

Question 2

1. Are the facts that are published “a matter of public concern”?

Answer 2

The court expresses “no comment on whether or not the news worthiness of the matter printed will always constitute a complete defense.”
What else does the court consider?

Question 3

2nd question

Answer 3

Are the facts that are published
“so intimate and so unwarranted 
in view of the victim’s position as to
outrage the community’s notions of decency”?
What are the “mores of the community”?

Question 4

answer to the 2 questions

Answer 4

“When focused upon public characters,
truthful comments upon dress, speech, habits, and the ordinary aspects of personality
will usually not transgress this line.”

Question 5

Does proof of actual malice change the result?

Answer 5

“Personal ill-will is not an ingredient of the offence.”
Warren and Brandeis
“A truthful and therefore non-libelous statement will not become libelous when uttered maliciously.”

Question 6

is the past the past?

Answer 6

Truthful revelations of past actions
may support a claim for
publication of private embarrassing facts.

Question 7

The First Amendment

Answer 7

The “First Amendment greatly circumscribes the right
even of a private figure
to obtain damages for the publication of newsworthy facts about him,
even when they are facts of a kind that people want very much to conceal.”

Question 8

the questions and who decides

Answer 8

When is information too private?
When does the publication of it offend the communities’ sense of decency?
What information is newsworthy enough to overcome privacy?

Question 9

newsworthy

Answer 9

must still pose a legitamite public purpose

Question 10

The question
Can a state impose sanctions on the accurate publication of the name of a rape victim obtained from public records?
all about the zone of privacy

Answer 10

the answer is no

Question 11

Is publication “offensive to the sensibilities” of the “supposed reasonable man”?

Answer 11

It may be, but . . .
When it is in the public record, its publication cannot be offensive
Is there any protection?
The states can decide what becomes public

Question 12

false light

Answer 12

Is false light the same as defamation?
Restatement (Second) of the Law of Torts, p. 1078-79
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if . . .

Question 13

false light 2 elements

Answer 13

a. The false light in which the other was placed would be
highly offensive to a
reasonable person, and
b. The actor
Had knowledge of or
acted in reckless disregard
as to the falsity of the publicized matter and the false light in which the other would be placed.

Question 14

how do constitutional protections apply to false light

Answer 14

Requires proof that defendant published reports of matters of public interest with knowledge of its falsity or in reckless disregard of the truth.

Question 15

false light requires the “Publicity” not “Publication”

Answer 15

“Publicity” requires dissemination to a large number of people

Question 16

Commercial Appropriation of Plaintiff’s Name or Likeness

Answer 16

Restatement (Second), p. 1084
One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.
Restatement (Third), p. 1085
One who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade is subject to liability for the relief appropriate . . .

Question 17

The “transformative use” test

Answer 17

A literal depiction or imitation of a celebrity for commercial gain, without adding significant expression
BALANCED AGAINST THE
A work that contains significant transformative elements

Question 18

The right is not absolute

Answer 18

States may recognize the right of publicity to a degree consistent with the First Amendment.

Question 19

The “Rogers” test

Answer 19

The Lanham Act
Protects trademarked property
Designed to protect consumers from the risk of confusion—the hallmark element of a Lanham Act claim.
The right of publicity, on the other hand, does not primarily seek to prevent consumer confusion.

Question 20

The right of publicity

Answer 20

Protects a form of intellectual property in one’s person that society deems to have some social utility.
Considerable money, time, and energy are needed to develop one’s prominence in a particular field.
Years of labor may be required before one’s skill, reputation, notoriety or virtues are sufficiently developed to permit an economic return through some medium of commercial promotion.

Question 21

WHO DOES The right of publicity PROTECT?

Answer 21

Protects the celebrity,

Not the consumer.

Question 22

The “predominant use” test

Answer 22

Where speech is both expressive and commercial
The “use and identity of Twist’s name
Has become predominantly
A ploy to sell comic books and related products
Rather than an artistic or literary expression.”
Thus, “free speech must give way to the right of publicity.”

Question 23

Competing interests

Answer 23

The right of publicity is not always trumped by the right of free speech.
The “act is the product of petitioner’s own talents and energy, the end result of much time, effort, and expense.
Much of its economic value lies in the ‘right of exclusive control over publicity given to his performance’;
if the public can see the act free on television, it will be less likely to pay to see it at the fair.”
Zacchini

Question 24

commercial misappropriation

Answer 24

Purpose of the book was to make money
But “commercial purpose” does not apply to publications that do not directly promote a product or service.
The court had First Amendment concerns.

Question 25

1. The Right of Publicity

Answer 25

The right of publicity is designed to protect the plaintiff’s right of commercial exploitation.
Does it survive the death of the celebrity?
Elvis assigned to Boxcar a valid property right, and
Elvis was entitled to the right to a certain percentage of the royalties
Boxcar’s right is a transferable property right, which means . . .
It is a right that survives Elvis’ death.
The income interest inures to Elvis’ estate.

Question 26

2. Newsworthy event

Answer 26

Court holds that the poster of Elvis is not “privileged as celebrating a newsworthy event.”