Invasion of Privacy
Chapter 6
Invasion of Privacy
Misappropriation and Right of Publicity
This chapter focuses on the tort of misappropriation invasion of privacy and its offshoot, the right of publicity. Both involve the non-consented use of a person’s name or likeness, often for commercial purposes. The cause of action differs somewhat depending upon whether the plaintiff is a private individual who is mentally anguished about the non-permitted use or a celebrity who wishes to be compensated when his or her name or likeness was used without permission.
Misappropriation Background
When Warren and Brandeis were advancing their radical ideas for the Harvard Law Review1 more than 100 years ago, they probably were not thinking in terms of misappropriation as a factor in their proposed right. Yet misappropriation cases were among the first to be presented as invasions of privacy. Over the years, such exploitation has become a major aspect of the ever-evolving laws of privacy and publicity.
The first attempts to recover monetary damages in misappropriation cases were not successful, although one plaintiff, an actress, was able to stop publication of a picture of her in a costume she thought to be scandalous.2 Among the most famous of the early misappropriation cases was that of Abigail Roberson of Albany, N.Y., whose picture, published without her consent, appeared in 1902 on thousands of posters advertising Franklin Mills Flour. The attractive young woman, mortified at seeing pictures of her splashed across the city and with the accompanying copy describing her as “the flour of the family,” brought suit for what she regarded as an invasion of privacy.
The New York Court of Appeals, in Roberson v. Rochester Folding Box Co.,3 rejected the arguments that had been advanced by Warren and Brandeis and issued a majority opinion insisting that:
… an examination of the authorities leads us to the conclusion that the so-called “right of privacy” has not yet found an abiding place in our jurisprudence, and, as we view it, the doctrine cannot now be incorporated without doing violence to settled principles of law by which the profession and the public have long been guided.4
This ruling, allowing Miss Roberson no relief for what had clearly been commercial exploitation of her physical appearance, touched off a firestorm in the next session of the New York State legislature and, in 1903, led to the passage of a statute making it both a criminal offense (a misdemeanor) and a civil wrong to make use of the name or likeness of an individual for “advertising purposes or for the purposes of trade” without first obtaining written consent.5 The new law permitted the person whose privacy had been invaded to seek monetary damages as well as an injunction to halt further publication of the offensive material. This statute, which later became part of the New York Civil Rights Law, was the first ever to deal with the right of privacy, and it remains on the books to this day.
The first common-law acceptance of the right of privacy came two years after Roberson by the Georgia Supreme Court in 1904. An insurance company’s advertising featured the name and picture of an Atlanta artist, Paolo Pavesich. The ad copy also presented a testimonial, falsely attributed to him, as to the value of having a sound insurance portfolio. Pavesich sued for $25,000 and won. The Georgia Supreme Court expressly rejected the New York decision regarding Abigail Roberson and endorsed the earlier views of Warren and Brandeis:
[t]he form and features of the plaintiff [Pavesich] are his own. The defendant insurance company and its agents had no more authority to display them in public for purposes of advertising … than they would have had to compel the plaintiff to place himself upon exhibition for this purpose.6
Once the misappropriation right of privacy was accepted in Pavesich, most other jurisdictions—but by no means all—began to follow suit. For example, a Washington court came down hard on an advertiser who used a customer’s name as an endorsement without permission: “Nothing so exclusively belongs to a man or is so personal and valuable to him as his name. … Others have no right to use it without his express consent, and he has the right to go into any court at any time to enjoin or prohibit any unauthorized use of it.”7 Today, the vast majority of states have adopted some form of misappropriation and the right of publicity.
Terminology
The Restatement of Torts (Second), much referred to in this book, defines misappropriation and the right of publicity as:
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 privacy.8
The key to understanding the tort of invasion of privacy by misappropriation is that it requires exploitation by another for purposes of trade or other benefit. The injury is personal.
Elements of Misappropriation and the Right of Publicity
Although the specifics are defined somewhat differently from state to state, generally the individual hoping to present a solid case that he or she should be victorious in a misappropriation case must first demonstrate that: (a) statements that appropriate the plaintiff’s identity or an identity licensed to or in other ways belonging to some other individual or organization bringing the lawsuit have been made; (b) the offending material has been shown to other persons by the defendant; (c) the plaintiff has been identified in the statements; (d) the actions of the defendant are the true cause of the actual harm suffered by the plaintiff; (e) the plaintiff is entitled to be compensated by money damages for that harm; and (f) the statements appeared because the defendant has done all this with the required degree of fault established by law. Let’s take a closer look at each of these points in turn.
Misappropriation Statement
The statement at the center of the misappropriation complaint must contain information about the plaintiff used in such a way that reasonable people would find offensive if it happened to them. Misappropriation in such cases often involves the use of a person’s name, likeness or persona in a manner that offends, or in other ways upsets, the plaintiff.
Consider two hypothetical examples. First, Joe Piscoonyak works at Old Sandlapper Brewing Company and indeed consumes a substantial quantity of Old Sandlapper beer. Without his knowledge or consent, your photographer takes a photograph of Joe headed for the checkout stand in a local supermarket, his shopping cart filled with cartons of Old Sandlapper. The photograph is subsequently published as part of an advertisement and in a company promotional brochure. Although the photograph truthfully depicts his enthusiastic choice of brews, and despite the fact that he is an employee of the company, you have nevertheless invaded Joe’s privacy by appropriating his likeness.
Second, Sally Sunshine’s engagement picture, a splendid photographic portrait, is displayed without her knowledge and consent in the window of the photographer’s studio as an example of the superior quality of work done by that studio. The work is indeed of admirable quality, yet Miss Sunshine’s privacy similarly has been invaded.
These two hypothetical situations, and the thousands of actual cases that could be employed as real-life examples, should alert the reader to the care that should be exercised before using any public or private individual’s name or likeness without permission, even if the use is by a not-for-profit organization. The reader should remember that the basis of a claim for invasion of privacy by misappropriation may not be because of concern about what was said or published, but rather that anything was said or published about the complainant at all. “Leave me alone” is the essence of this tort.
Publication
While technically publication occurs the moment a third person has seen the communication, the offending message must typically reach a broad audience, rather than just a few, to be actionable. Many jurisdictions refer to publication as giving “publicity” to the misappropriated information.
Like defamation, a misappropriation invasion of privacy plaintiff often has a relatively easy time demonstrating that publication has occurred. This is because the defendant advertising agency or public relations department has disseminated the information to thousands, if not millions, of readers or viewers in network television advertising, press release material published in hundreds of news outlets or in campaigns on YouTube, Facebook or other social networking sites.
Identification
The plaintiff in a misappropriation privacy case must meet virtually the same requirements as a defamation plaintiff to prove that an audience of concern to the plaintiff (e.g., fellow employees) believes that the statements are about him or her. Identification is often not difficult for the plaintiff because the defendant, as a professional communicator, has clearly identified the subjects in the communications.
The tort of misappropriation is limited to individuals if the claim involves a private person because organizations cannot demonstrate they have suffered mental anguish about the published information. However, if a celebrity has in some way conveyed the rights to the use of his or her name, likeness or persona to an organization, that organization can bring a misappropriation right of publicity claim for the loss of financial income attributable to the unauthorized use by the defendant.
Causation
The plaintiffs in a misappropriation privacy suit must allege and prove that the actions of the defendant were the logical and proximate cause of the claimed injury. Often this is easily accomplished because the plaintiffs, if private citizens, are simply charging that they have understandably suffered mental anguish when the defendant outrageously misappropriated their names or likenesses and the results have been seen by acquaintances or clients or customers. Celebrity plaintiffs, similarly, may have an easy time if the misappropriation claim simply involves a complaint that their names have been linked to activities the celebrities find distasteful.
Problems proving causation might arise when private plaintiffs are complaining about the misuse of their identity in situations where, in the minds of a judge or jury, they have not suffered mental anguish severe enough to warrant compensation. Celebrities may experience difficulty in proving causation if their claims involve complaints of economic harm because they may find it difficult to provide evidence that the value of their endorsement appeal has declined or that they have been cheated out of potential income because of the actions of the defendant.
Compensation
A private plaintiff seeking compensation for harm to his or her mental well-being resulting from misappropriation of his or her identity generally will be entitled to seek four different kinds of monetary awards. These are nominal damages, special damages, actual damages (in some jurisdictions, the second and third awards are sometimes combined and called “general” or ”compensatory” damages) and punitive (or “exemplary”) damages.
For a plaintiff to seek a small or nominal damage award is relatively rare in misappropriation cases. More typically, a private plaintiff, actually seeking a large sum to compensate for the supposed harm, is found by a judge or jury to have suffered no real harm and, therefore, not deserving of more than a nominal award of damages. The same is true for celebrities.
To obtain special damages, often thought of as “out-of-pocket dollar loss,” plaintiffs must produce evidence sufficient to prove that the misappropriation of identity cost the plaintiff a demonstrable monetary loss. Expenses for psychiatric care, counseling services or prescribed medications, as well as evidence of wages lost or other financial reverses because the plaintiff was too upset to function normally, are examples of special damages often claimed by private plaintiffs. Celebrity plaintiffs, normally, are seeking reimbursement either for expenses linked to their mental anguish that are similar to a private plaintiff or for losses to their financial balance sheet (e.g., “I charge $10,000 for a product endorsement”).
The third category of damages, actual damage, requires no proof of actual monetary loss. However, all plaintiffs must demonstrate that the alleged mental anguish caused by the misappropriation does, in fact, exist. In jurisdictions that ask for some evidence of mental anguish, plaintiffs seeking actual damages, typically, in addition to their own testimony, introduce testimony from friends and medical and/or counseling professionals about psychic damages. It should be noted that these damages are only available to a celebrity who is claiming mental anguish in addition to financial loss.
If a judge or jury accepts that the harm has occurred and the defendant has no additional defenses, money will be awarded to the plaintiff as compensation based on the judge or jury’s estimation of the harm—an invitation for large damage awards for the plaintiff. The possibility of such large verdicts should be all the impetus needed for advertising and public relations professionals to take all possible precautions to avoid becoming embroiled in a misappropriation suit.
Punitive damages, generally, are awarded when the defendant’s actions are so outrageous that they offend the conscience of judges or juries. In a private misappropriation invasion of privacy suit, punitive damages might be awarded if the misappropriation was done in a way that was considered outrageous and shocking (e.g., purposely linking the plaintiff to a controversial product). Punitive damages in celebrity misappropriation cases might be awarded either because the celebrity is linked to an outrageous activity, or has severely damaged the plaintiff’s ability to capitalize on his or her own celebrity status. Like actual damages, punitive damage awards can reach mega-amounts in misappropriation suits and are as dangerous, if not more so, to defendants.
Defendant Fault
Fault in tort law often is defined as an error in judgment or conduct, such as negligence or any departure from normal care because of inattention, carelessness or incompetence. However, in misappropriation invasion of privacy, the majority of states and state courts have decreed that the fault required is intentional or purposeful action, while others go further to mandate a fault standard that resembles common law malice (i.e., the taking of the name or likeness was an intentional act designed to harm the plaintiff).
Affirmative Defenses
Once a misappropriation privacy plaintiff has made a prima facie case—a statement appropriating the name or likeness of another without consent, publication, identification and so forth—the other side must mount a defense. Affirmative defenses include personal consent, property releases, incidental use, transformative use, satire, parody and newsworthiness.
New York’s ground-breaking Right of Privacy law says, in part:
[a]ny person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without … written consent … may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof, and may also sue and recover damages for an injuries by reason of such use. …9
Experienced public relations practitioners and advertising professionals know the value of obtaining signed personal consent on release forms from their subjects and to ensure that those they hire to obtain or create information (e.g., a freelance videographer) obtain them as well. A photograph used purely for news reporting purposes does not require consent (this issue is discussed further later in this chapter). However, if the news organization reprints or sells the photo for later use in advertising or promotional materials, the newsworthiness defense might not apply, and some additional protection—in the form of a signed consent—may be necessary.
A photographer attempting to freelance a picture or a freelance writer seeking to market an article will find that a signed release to accompany the material will make it more marketable. An example of a tightly drawn sample model release is shown in Appendix D. Most professional photographers and writers routinely carry around pads of such blank release or consent forms to use as needed. Other, simpler versions of a release form may also be used; there is no single, uniform standardized release.
The consent form allows the person who is being used for commercial purposes to decide how much right of privacy to give up and on what terms. Even so, problems with consent can arise. The following are ways to avert some of them:
(a) The consent should be written. A number of states do not recognize oral agreements or handshakes where misappropriation lawsuits are concerned.
(b) It should be understandable to persons of average intelligence.
(c) The person giving the consent must be a competent adult. Minors— people under 18 years of age—cannot sign consent forms that are legally binding; a parent or guardian must sign the consent form on their behalf.
This latter point was sorely tested in prolonged litigation in New York by the actress Brooke Shields and her mother during the 1980s. At the age of 10, Ms. Shields posed semi-nude for a picture story that appeared in a Playboy Press book, Sugar and Spice