Chapter 7: Invasion of PrivacyKey:1. Terms2. Laws and Acts3. Cases/parties involved- Invasion of privacy: o The commercial exploitation of an individual’s name or likenesso The intrusion on private domainso The revelation of intimate information about someoneo Libel-like publication of embarrassing false info about a personTHE END OF PRIVACY?- The idea of “privacy” entered American at the end of the 19th century- Participating in govt social, educational, and health programs, the credit system, and the govt intrusions for national security all led to a rapid decrease in privacy. INVASION OF PRIVACY- The genesis of privacy statutes was in mass media, or generally newspaper reporting.- Unlike long standing libel law, privacy law is new and developing.THE GROWTH OF PRIVACY LAWS- The constitution contains nothing about privacy- In 1965, the Supreme Court ruled in Griswold vs. Connecticut that something like the right to privacy was implicit in the Bill of Rights. The constitutional right to privacy has been cited since then in the Roe v. Wade abortion battle and Lawrence v. Texas that declared the Texas anti-sodomy law to be unconstitutional. - Sensational celebrity journalism pushed two Boston lawyers, Samuel D. Warren and Louis D. Brandeis to use the pages of the Harvard Law Review to propose a legally recognized right to privacy. 1890- the fountainhead of modern privacy law. - The state of NY was first to adopt a privacy law, which prohibited the commercial exploitation of an individual and called it a right to privacy. - All states except North Dakota, Vermont, and Wyoming have some kind of privacy laws, but none of them are very similar to each other and it is hard to generalize. - Four areas of privacy law:o Appropriation of name or likeness for trade purposeso Intrusion upon an individual’s solitudeo Publication of private info about an individualo Publishing material that puts an individual in false light- Appropriation: taking a person’s name, photo, or likeness and using it for commercial gain without permission. - Intrusion: intrusion upon the solitude and into the private life of a person is prohibited. - Publication of private information: must be truthful gossip, such as details of death or illness.- False light: an outgrowth of appropriation. - Most Internet lawsuits fall under 2 and 3.- Only people have a right to privacy- not corporations, labor unions, associations, etc. (they can use libel law though). - Privacy law often sees many strange rulingsAPPROPRIATION- It is illegal to appropriate an individual’s name or likeness for commercial or trade purposes without consent- 1902 Abigail Robertson of NY awoke one morning to find pics of her all over town advertising Franklin Mills Flour. She lost her case because “no privacy laws existed yet” leading to a controversy. The state legislature adopted the first privacy law in 1903. It was narrow: use of a person’s name or likeness without the individual’s consent for advertising or trade purposes was made a minor crime. People could seek injunction and damages. - Georgia was the first state to recognize the right of privacy through the common law. - Paolo Pavesich, an Atlanta artist, discovered that a life insurance company had used his photograph for advertisements in a before-and-after campaign with accompanying testimonials. He sued and won in the GA Supreme Court.RIGHT OF PUBLICITY- The appropriation tort encompasses two slightly different legal causes of action: right of privacy; right of publicity. o The right to privacy dimension of appropriation was designed to protect an individual from the emotional damage that can occur when a name or likeness is used for a commercial or trade purpose. Right to publicity is an attempt to remunerate individuals for the economic harm suffered. o Only people with commercial value to their name or likeness can sue for right of publicity. John Doe cereal wouldn’t attract more customersbut Derek Jeter cereal would. o A person can pass on the property rights of his or her name once he/she has passed on. In that case, the heirs can sue for violation of the deceased’s right to publicity. But for regular people, right to privacy dies when they do.- The right to publicity litigation has accelerated in the past two years because of the growth of the cult of celebrity and American businesses are now tryingto use that celebrity for advertising. USE OF NAME OR LIKENESS- Stage names, pen names, pseudonyms, etc. count the same as real names- The names of businesses, schools, etc are not protected.- Model Ann K. Kennis sued Vampire Weekend for her picture on their album, Contra.- Singer songwriter Tasleen Yasin sued publisher when they used a pic of her on the cover of a book entitled “Baby Doll”- A likeness can also be a sketch or drawing, and can even be of something other than a person’s face and still be identifiable. - Protecting a voice also counts, as in the lawsuit by the son of John Facenda whose voice was used for NFL films for many years, and then a video game recreated that voice. That particular voice had commercial value in that context, it was used for commercial purposes, and it was not consented- went to trial. - Actors have sometimes sued for infringement on characters they have portrayed, such as George McFarland as Spanky, who sued a restaurant called Spanky McFarland’s. - 9th US Court of Appeals also saw a case where two actors sued a restaurant for installing animatronic robots that looked like characters the two actors had played in “Cheers”. The court ruled in favor of the actors. - Woody Allen sued American Apparel for snapshot of “Annie Hall” used in advertising. - But in 2008 a federal court in NY rules that the state statute did not “extend to fictious characters adopted or created by celebrities. - The Christian Dior Company was sued by Jackie O when it used an actress named Barbara Reynolds in an advertisement. Reynolds looked very similar to Jackie, and a NY court ruled that this was the use of the former first lady’s likeness. - Bette Midler successfully sued the Ford Motor Company when it hired a singer that sounded almost exactly like Middler to sing one of Middler’s hit songs for a soundtrack in a TV ad.- A disclaimer can help a company avoid being sued for a look-alike or sound-alike, if it is prominent. - In 1992, TV personality Vanna White successfully sued Samsung when it made an ad with a robot in a blonde
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