Right of Publicity and Privacy Outline

The Rights of Publicity and Privacy Outline
(c) Rutchik 2005
Thanks again to Tracey Oh, Esq to be for her work on this.

BE AWARE THAT THIS IS A GRAPHIC AREA OF THE LAW AND THE HYPOS HERE ARE INTENDED TO ILLUSTRATE LEGAL DOCTRINES.

Hypothetical:
Jim and Sarah were madly in love and lived together in New York. One day, they went to a party and had one too many drinks, at least Sarah did. After hearing “Get a room!” about five times, the couple headed back to Jim’s apartment, where he had a hidden video camera set up. All he had to do was press an inconspicuous little button and the camera would record their night’s adventures for 4 uninterrupted hours. Before they got down and dirty, Jim suggested it’d be fun to take some pictures of Sarah, who in her eagerness to have sex with Jim, had already stripped down to nothing. Sarah agreed, and even seemed to have fun posing for the camera. Jim suggested that they call and invite his friend Tanya over, whom Sarah had only met once or twice. Sarah was drunk but caught the implication of the suggestion. She glanced up at Jim with her eyebrows raised and said, “You mean….” Jim nodded. They had talked about having a threesome before but Sarah always thought it was a joke. Nevertheless, she felt like doing something crazy and agreed. Tanya arrived shortly after with more alcohol. While Sarah went to the bathroom, Jim had Tanya press play on the hidden video camera, which was nearest to her.
About two months after their wild and crazy night, Jim and Sarah broke up. It was a mutual breakup, with no hard feelings. She later found out that Jim circulated the video online and it had been downloaded 4,000 times. It turns out that Jim had planned the night to include Tanya and had intended to sell the video all long. Tanya given Jim permission orally, but not in writing, giving Jim the right to do whatever he wanted with the tape. Sarah is still seething and feels that her privacy was invaded. She was an aspiring model who wanted to break into print and runway modeling, and she feels that her image is tarnished now because no one will take her seriously if they find out about the video. Although she can’t do anything about the video because it has already been on the Internet for awhile, she wants to try to get back the pictures that Jim took of that night. What are Sarah’s rights? Also, Tanya later decides to sue Jim because she changed her mind about having the video disseminated online. Does Tanya have any rights?


I. The right of privacy
a. It is distinct from the right of publicity protected by state common or statutory law.
i. It means different things to different people like the word freedom.
ii. Constitutional privacy rights v. tort law privacy (invasion of privacy). Not the same thing. Rosenberg v. Martin, 478 F.2d 520, 524 (2d Cir. 1973).
1. constitutional privacy protects against act by govt.
a. does not dictate rights between private citizens.
b. Does not define state law tort invasion of privacy, which can go further in its scope of protection.
c. Confidentially and autonomy branches (Whalen v. Roe, 429 U.S. 589-99 (1977).
i. Avoiding disclosure of matters
ii. Interest in independence in making certain personal choices.
d. Examples
i. Govt intrusion into person’s mind and thought process and related right to control information about oneself. Raime v. City of Hedwig Village, Tex, 765 F.2d 490, 492 (5th Cir. 1985).
1. you cant be forced to recite a prayer in a public school.
ii. Governmental intrusion into person’s zone of private seclusion
1. unwarranted search and seizure. 4th amendment.
iii. governmental intrusion into a person’s right to make certain personal decisions
1. contraceptives or abortions.
2. right of individual autonomy limited usually to matters concerning marriage, procreation, contraception, family relationships and child rearing and education. Paul v. David, 424 U.S. 693, 713 (1976).
iv. govt can’t force you to surrender or admit you’re guilty. 5th Amendment
v. the right of ppl to be secure “in their own persons.” 4th Amendment.
2. tort law privacy protects against acts by private parties.
b. Although the right to privacy is not explicitly stated in the Constitution, it has been inferred in it, but the Supreme Court has said that several of the amendments create this right.
i. 14th Amendment protects the liberty of personal autonomy.
ii. The 1st, 4th, and 5th Amendments also provide some protection of privacy, although in all cases the right is narrowly defined.
iii. The Constitutional right of privacy has developed alongside a statutory right of privacy which limits access to personal information.
1. Right of privacy must be balanced with state’s compelling interests.
a. Including: the promotion of public morality, protection of the individual's psychological health, and improving the quality of life

c. 4 Branches of Privacy (Prosser)
i. False light invasion of privacy
1. most akin to defamation
2. false light invasion of privacy protects a person’s interest “in being let alone” while defamation protects one’s interest in a good reputation.
3. publication doesn’t have to be defamatory. False light claim may actually involve statements that say something good about the plaintiff, yet are “false.” Instead of the defamatory requirement, false light requires that the statement be “highly offensive to the reasonable person.”
4. 30 states acknowledge false light tort, 13 states either reject the tort or noted that the facts of particular case didn’t justify recognizing the tort. 7 states haven’t confronted the issue at all, as of 2002.
5. The use of a film clip of a New Orleans Mardi Gras parade as background for an adult movie called Candy the Stripper, which focused on drugs and sex and was produced by Playboy, prompted a false light claim by persons in the parade. Louisiana Court of Appeals held that the mere appearance of a person in a background crowd scene in an adult movie does not put that person in the false light of having voluntarily chosen to appear in such a film. Easter Seal Soc For Crippled Children and Adults of Louisiana, Inc. v. Playboy Enterprises, Inc., 530 So. 2d 643, 648 (La. Co. App. 4th Cir. 1988).
6. “Stolen Nude Photos” Case
a. Husband took nude photos of his wife and hid them in a drawer. Later the neighbor broke into the home and stole some of the photos. He submitted them to Hustler magazine for the amateur section by forging plaintiff’s signature on consent form and included some misinformation about plaintiff’s imagined sexual fantasies. Jury verdict of $150,000 against Hustler magazine affirmed for negligently verifying the photo submissions and guarding against forgery. Wood v. Hustler Magazine, Inc
ii. Appropriation
1. Definition: involves the unpermitted commercial use of a persons identity which causes injury to dignity and self esteem with resulting mental distress damages.
2. sometimes conflicts with First Amendment interest in news dissemination.
3. appropriation for advertising purposes is the most common ground for successful right of publicity suits.
a. Both celebs and noncelebs may allege this claim.
4. Appropriation v. Right of Publicity
a. Right of Publicity branched out from this once celebrity plaintiffs began to appear in court complaining of unpermitted use of identity and persona in commercial context. Celebs don’t suffer from indignity or hurt feelings because of exposure in advertising use. Their pics are already widely circulated. Now it’s a separate and distinct legal concept.
i. Infringement of right of publicity focuses on injury to the pocketbook, while invasion of appropriation privacy focuses on injury two the emotions and psyche.
b. “Publicity rights are meant to protect against the loss of financial gain, not mental anguish.” Cardtoons, L.C. v. Major League Baseball Player’s Assn, 95 F.3d 959, 976. (10th Cir. 1996).
iii. Disclosure of Private Facts
1. Three basic elements must be met under common law. (Smolla, Law of Defamation § 10.04, 1992)
a. There must be sufficient publicity given to the facts so that they may be considered disclosed to the public at large, or to so many people that the matter is likely to become public knowledge.
b. Facts must not already be known to the public.
c. The disclosure must be highly offensive to a reasonable person of ordinary sensibilities.
2. facts are true, no element of falsity
3. strict application because of publics right to known about matters of legitimate public concern.
4. the private facts must be a kind that would be highly offensive to a reasonable person. “The Law of privacy is not intended for the protection of any shrinking soul who is abnormally sensitive about such publicity.” (Prosser, Privacy at 397)
a. Bratt v. International Business Machines Corp., 785 F.2d 352, 360 (1st Cir.)
5. the following examples were not found to be highly offensive disclosures. (cases on page 547 of McCarthy book)
a. Retirement
b. Religious affiliation
c. Buying a new expensive house
d. Found and returned large sum of money
e. Receives certain salary
f. Receiving passing score on test
g. Is one of the wealthiest people in town
h. Is a certain age
i. Stayed overnight in a hotel
j. Has certain spending habits and preferences
k. Kissed a rock musician in the stall of a women’s bathroom in a bar
6. the following examples show what a reasonable person would find highly offensive
a. unpermitted publication in a national magazine of a nude photograph of the person
b. disclosure by employer of a fellow employee that she had a hysterectomy or masectomy
c. public disclosure of plaintiffs name on signs carried by protestors that plaintiff was about to undergo abortion
d. the showing of a surreptitiously made videotape of plaintiff engaged in sexual intercourse
e. the distribution on the Internet of a video made by plaintiffs of themselves engaged in sexual conduct
7. some courts allow suing under a fictitious name in order to prevent disclosure of information that is sensitive and highly personal. Doe v. Heitler, 26 P.3d 539 (Cp;p Ct. App. 2001).
iv. Intrusion or “psychic trespass”
1. the intentional invasion of the solitude or seclusion of another in his or her private affairs or concerns, through either physical or nonphysical means.
a. i.e.) eavesdropping, peeping through windows, opening someone’s mail, etc. (Rodney A. Smolla, Free Speech in an Open Society 145-146 (1992)).
b. Against Press:
i. Reporters used a hidden camera and hidden recording devices and Court of Appeals for 9th Circuit upheld intrusion claim because the devices were not indispensable tools in newsgathering. First Amendment does not accord news reports immunity from torts committed during newsgathering. Dietemann v. Time, Inc., 449 F.2d 245, (9th Cir. 1971).
ii. Galella v. Onassis case. Onassis sued for injunction against paparazzi who brought powerboat dangerously close to her while she was swimming. He bribed doormen, etc, for information about the Kennedys.
c. Undercover reporting
i. 2 ABC employees went undercover and got hired as employees of a market to record their unsafe meat handling practices. Although found guilty of trespass, ABC only had to pay $2 in damages because court said Food lion chose to attack only the manner in which the story was gathered and not the truth of the story itself. Food Lion v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999).
ii. ABC reporters obtained an interview with the head of a medical pap smear testing lab by posing as persons interested in going into the testing laboratory business and videotaped it with a hidden camera. Ninth circuit found that plaintiff had no reason to expect privacy in his conversation with the reporters. Medical Laboratory Management Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806, 819 (9th Cir. 2002).
2. to prove there has been an intentional intrusion into a private place, conversation or matter, plaintiff has to prove there was
a. an actual, subjective expectation of seclusion or solitude in that place, conversation or matter,
b. that that expectation of privacy was objectively reasonable.
3. Hidden Cameras and consent to record
4. if the secret recording doesn’t disclose facts that are not highly offensive and are of legitimate public concern, there is no disclosure tort. Medical Laboratory Management Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806, 819 (9th Cir. 2002).
d. Transfer of Privacy Rights
i. While acts that invade privacy may be consented to or licensed, a person’s privacy rights can’t be assigned or sold.
ii. Privacy rights are personal
1. The right to sue for invasion of privacy can’t be asserted by a spouse of offspring. Russell v. Marboro Books, 18 Misc. 2d 166 (Sup 1959).
iii. Nonassignability of privacy rights is a huge reason why creation of separate concept of right of publicity came about.
1. one court said in 1935 that professional baseball players could not assign or exclusively license their names for use on baseball bats, they could only sign a consent or waiver which prevented them from objecting to the manufacturers use of their names on baseball bats. → “fame is not merchandise.” The baseball bat manufacturer who had a license from babe Ruth couldn’t sue a competing bat maker who sold Ruth bat. Hanna Mfg. Co. v. Hillerich & Bradsby Co., 78 F.2d 763, 766 (C.C.A. 5th Cir. 1935).

II. Modern Development of the right to publicity
a. Right to publicity is part of “unfair competition” law
b. Right to publicity is a property right. California: Cairns v. Franklin Mint Co., 24 F. Supp.2d 1013, 1025 (C.D. Cal. 1998). Courts agree to this, as well as commentators, the Rest. of Unfair Competition, and Restatement of Torts. Several state statutes explicitly state this too. Cal Civil Code, Ind. Code, Ky Tenn, Tex, Washington, Okla.
i. So you can sell it. Why would you sell it?
1. celebrity may want to transfer all publcitiy rights to a corporation or trust for income tax or estate planning reasons. Martin Luther King Jr. Center for Social Change, Inc. v. American Heritage Products., Inc. 250 Ga. 135.
2. an aging celeb may want to give all his rights to a spouse or offspring.
a. Famous animal trainer clyde beatty assigned all his rights to his wife. Acme Circus Operating Co v. Kuperstock, 711 F.2d 1538 (11th Cir. 1983).
c. first case involving right of publicity
i. Zacchini v. Scripps-Howard Broadcastings Co., 433 U.S. 562 (1977).
1. Hugo Zacchini was an entertainer at a county fair presenting his act of the “human cannonball.” The local television station videotaped and broadcast the entire 15 second act on the 11 o’clock news. Zacchini sued for damages for reproducing his live performance without permission. Ohio courts held it was privileged as news because it was a matter of legitimate public interest. Supreme Court reversed and held that the First Amendment’s concern with free speech did not permit the television station to broadcast the performance as news.
2. Although this case didn’t involve the classic type of use of identity in commercial advertising, it was important because it was the first time Supreme court used the term “right of publicity” as the recognized and established legal principle we know it today.
3. court established the right of publicity as creating economic incentive to work hard to produce a performance of interest to the public, similar to federal patent and copyright laws.
d. case law is mixed at intersection between right of publicity and First Amendment.
i. 9th circuit upheld right of publicity claim and rejected defense that advertiser was only giving sports news about a famous sports star when it mentioned his accomplishments in an ad for autos. Abdul Jabbar v. General Motors Corp., 75 F. 3d 1391. (9th Cir. 1996).
ii. 10th circuit dismissed right of publicity claim against baseball cards that parodied prominent professional players. Since parody baseball cards were not commercial speech, they received full First Amendment protection. Cardtoons L.C., v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th cir. 1996).
e. 1995 Restatement of Unfair Competition
i. strongly supports the right of publicity as a full fledged part of the law of unfair competition. § 46 declares: illegal the use without consent of the commercial value of a person’s identity for the purposes of trade.
1. purposes of trade = use in advertising, on merchandise or in connection with services.
a. Doesn’t include use of identity in news reporting, commentary, entertainment or works of fiction and non-fiction.
ii. Nature of harm suffered by plaintiff: privacy v. publicity
1. While privacy relates to an injury to personal feelings, right of publicity provides redress for an appropriation of the commercial value of identity.
III. Elements of Infringement
a. Intent – doesn’t matter that you didn’t mean to identify plaintiff.
i. “the question is not so much who was aimed at as who was hit.”
1. in 1939, movie producer organized a publicity stunt to promote movie. Sent out bogus love letter to 1000 males in Los Angeles signed by “Marion Kerby,” the star of the movie. The letter promised a good time if the recipient met her in front of Warners Theatre on Thursday evening. Plaintiff’s name was also Marion Kerby and she was the only person listed as such in the phone directory. She received phone calls and visits from men who received the letter. She sued for false light invasion of privacy. Court of Appeals held that it didn’t matter that movie studio had no intent to refer to plaintiff and was negligent in not checking to see if there was a real Marion Kirby. Kerby v. Hal Roach Studios, 53 Cal. App. 2d 207 (2d Dist. 1942).
ii. if intent is proven, identification is usually presumed.
1. Goes off presumption that when person intends a result, the result is presumed to have taken place. Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 836 (6th Cir. 1983).
b. Mistake as to consent of plaintiff
i. While a mistake as to consent may mitigate damages, it is not a defense on the merits.
1. ex) U.S. Camera Annual published a nude photo of a professional model, who hadn’t signed a consent. The Camera Annual had obtained the photo from an agent and assumed that the agent had a release from the model. New York court held that the mistake was not a defense to liability and awarded $1500, only for mental distress since the model didn’t offer evidence of loss of income from lost modeling jobs. Myers v. U.S. Camera Pub. Corp., 9 Misc. 2d 765. (City Ct. 1957).
2. A husband took nude photos of his wife. The photos were stolen and submitted to Hustler magazine under forged consent form. P recovered $150,000 under a false light privacy claim. The court noted that Hustler “carelessly administered a slipshod” procedure for verifying the consent forms. Wood v. Hustler Magazine, Inc., 736 F.2d 108 (5th Cir. 1984). In another case, $30,000 was awarded for nude photograph published without consent because of Hustler’s “flawed” procedure for verifying the consent forms. Gallon v. Hustler Magazine, Inc. 732 F. Supp. 322 (N.D. N.Y. 1990).
c. falsity, deception, or confusion is not required for infringement of right of publicity
i. using person’s identity to draw attention to a product or ad is an infringement.
d. no need to prove actual commercial damage to identity or persona in order to establish a claim for liability, you only have to prove that the defendant intended to obtain commercial advantage. Doe v. TCI Cablevision, 110 S.W.3d 363, 371 (Mo. 2003).
i. Damage is presumed.
e. doesn’t require pleading or proof of falsity or resulting confusion or mistake. Mere unpermitted use of a person’s identity to draw attention to product or advertisement infringes on right of publicity.
i. If identity is used in insignificant or fleeting matter, it may be defended as immune “incidental” use.
f. Identifiability
i. plaintiff must be “identifiable” from the total context of the defendant’s use.
1. You can be liable even if you try to change the image or identity. (T&T Manufacturing Co. v. A.T. Cross Co., 449 F. Supp. 813.
ii. the number of people that would recognize the plaintiff doesn’t affect the cause of action, it affects the amount of damages. (Hirsh v. S.C. Johnson & Son, Inc., 90 Wis. 2d 379, 1970).
iii. In a case of unauthorized advertising use of a photo of a non-celebrity, even evidence of recognition by only one person – the husband – was enough. Cohen v. Herbal Concepts, Inc. 63 N.Y.2d 379 (1984).
iv. Even if the photograph is of the plaintiff, you have to be able to identify that it’s him or her from the photo.
1. No liability for using a picture of a part of plaintiff’s body where there’s no way for anyone to recognize the person.
a. muscular torso of bodybuilder was used in an ad, and Canadian court found no invasion of publicity or privacy. Joseph v. Daniels, 1986 WL 593842 (B.C. S.C. 1986).
2. Widely distributed photograph of firefighter and injured baby taken after Oklahoma City bombing didn’t make the plaintiffs readily identifiable because facial and other identifying characteristics were obscured. Oklahoma Nat. Gas Co. v. LaRue, 156 F.3d 1244 (10th Cir. 1998).
3. faces in a crowd have no statutory right usually – crowds at sporting events, concerts, etc.
a. California, Florida, Nebraska have statutes.
b. Group scenes in commercial advertisements
i. Different because models and actors usually get paid.
v. Look-Alikes
1. The use of a look alike model in an advertisement can be sufficient identification of a celebrity plaintiff if the obvious effect is to attract attention to the advertisement through use of the celebrity’s persona.
2. can trigger false endorsement liability as well as general deception.
a. Advertising company hired a model to look like Jackie Onassis in an advertisement. Onassis v. Christian Dior-New York, Inc., 122 Misc. 2d. 603.
b. Presley’s Estate v. Russen, 513 F. Supp. 1339 (D.N.J. 1981)
c. White v. Samsung Electronics America, Inc., 971 F. 2d 1395.

g. celebrity status not required
i. defendant’s use proves commercial value of plaintiff’s identity.
1. Worker was videotaped while installing ceramic tile. The tile company used the videotape in tv ads. Court of appeal held that defendant benefited commercial even though the worker wasn’t a celebrity. Ainsworth v. Century Supply Co., 693 NE2d 610. (Ill App 1998).
IV. Assignability v. Licenses
a. assignment – outright sale of right and title in the right of publicity
b. license – limited permission to use within a defined time, context, market line or territory. Presley’s Estate v. Russen, 513 F. Supp 1339, 1350 (D.N.J. 1981).
i. Exclusive license – licensor promises not to grant further licenses within the scope of exclusivity.
c. “Consent” is most often the word used in courts to speak of permission to use one’s identity.
i. I.e. the person gives his or her consent to conduct which would otherwise be an invasion of the appropriation form of privacy.
ii. Consent
1. to be effective, consent must be:
a. by one who has the capacity to consent or by a person empowered to consent for him and
b. to the particular conduct, or to substantially the same conduct. Russell v. Marboro Books, 18 Misc. 2d 166 (Sup 1959).
2. A consent to one act is not a consent to any and all other forms of invasion of privacy related to that act.
a. Ie) wife consented to her husband taking nude and sexually explicit polaroids of her. They divorce and husband became bitter and sent 60 copies of the photos to neighbors and friends. When sued for invasion of privacy, husband claimed that wife wiaved her rights by posing for them and failing to ask for the photos as part of the divorce settlement. Court granted summry judgment in wife’s favor. Pohle v. Cheatham, 724 N.E.2d 655 (Ind. Ct. App 2000).
b. A young model signed an unconditional photographic release and her photo appeared on the cover of Hustler magazine. The Court found the release was a complete bar to suit for invasion of privacy. Morgan v. Husler Magazine, 653 F. Supp 711, 718. (N.D. Ohio 1987).
iii. Duration
1. where consent is oral, informal and gratuitous, lapse of years until use is made might make the user liable to renew the request for consent.
a. Ie) 24 year old man went on a training program at a health club. He agreed to taking of before and after shots for advertising. Ten years later the pictures were used in a local paper. Court found invasion of privacy because people change over time, and what might have been ok with the guy then, might not be ok at age 34. McAndrews v. Roy, 131 So. 2d 256, 259 (La. Ct. App. 1st Cir. 1961).
iv. a license or consent to use of identity for a particular use can’t be stretched to include a consent for other and different uses.
1. A model’s license to Playboy magazine to print nude photos is not an implied license to Hustler magazine to reprint the same photos. Douglass v. Hustler Magazine, Inc. 769 F.2d 1128, 1138-1139 (7th Cir. 1985). Either plaintiff or Playboy could have authorized publication of photos in Hustler but neither did.
2. a human sexuality expert granted a license to TLC company to use his identity in promoting sex education videos but did not give permission to TLC to grant a sub license to TEI company to use plaintiff’s identity in distributing the videos along side sexually explicit videos and products. Seifer v. PHE, Inc. 195 F. Supp. 2d 622, 631 (S.D. Ohio 2002).
v. Must consent or license be in writing?
1. Some states require it to be in writing. New York does. NY courts say that an oral or implied consent, is not a complete defense but may be pleaded in mitigation of damages.
a. Massachusetts, New York, Ohio, Rhode Island, Utah, Virginia, Wisconsin all require consent to be in writing.
vi. Implied consent
1. consent can be implied from conduct or inaction that is reasonably interpreted as giving permission.
a. Usually the critical issue is not consent to the kind of use, but to the scope of the consent.
vii. Minors
1. some states require that consent be given by parent or guardian.
a. Nude photos were taken of 10 year old Brooke Shieldsin her bath by a professional photographer. The photos were widely displayed and published. Shields’ mom had signed a release on behalf of brooke. Later Brooke became a famous actress and model. A nude photo of her appeared in a book and she appeared nude in the role of Pretty Baby, about a child prostitute. At age 17, brooke tried to cancel the 1975 contract signed by her mom and sued the photographer for invasion of privacy. Too late. NY Court of appeals refused to disaffirm the K. Since photos weren’t pornographic, it wasn’t a public policy issue either. Shields v. Gross, 58 NY2d 338 (1983).
b. A mother gave a release to a photographer who took nude but non porno pics of her 6 year old girl and 4 year old son. The phots originally appeared in a book called the Sex Atlas and the mother objected to reprints appearing in Hustler magazines book review of Sex atlas. Since CA pubclity and privacy statute authorized relases and license by a parent, the court upheld the consent. Faloona by Frederikson v. Hustler Magazine Inc. 799 F.2d 1000, 1005 (5th Cir. 1986).
viii. license induced by fraud or mistake
1. plaintiff might be able to rescind the license if it was given in reliance on a mistake or misrepresentation. Rest. Second of Torts § 892 b (2) 1979)
2. Texas court held that consent obtained by fraud was like not having any consent. A performer at an amusement part sued Larry Flynt for using her photo in Chic, a sexually explicit magazine. She sued for invasion of privacy by being in a false light by having her photo appear in such a mag. The editor of the mag told the public relations director of the part that Chic was a mens mag featuring fashion, travel and humor. Since the consent had been obtained by misrepresentation, it was void. Braun v. Flynt, 726 F.2d 245, 255 (5th Cir. 1984).
ix. forged licenses
1. if a license can be proven to be forged, it is void and invalid.
a. Wood v. Hustler magazine… same case as before about neighbor who stole nude photos.
b. Professional model turned actress sued Hustler for invasion of FL privacy and infringement on right of publicity because it published nude photos of her. Hustler showed at trial 2 signed released but it was forged. She had only signed a release allowing Playboy to publish the photos. Douglass v. Hustler Magazine, 769 F.2d 1128, 1132 (7th Cir. 1985).
V. Joining Publicity and Privacy Claims
a. a plaintiff may join both claims as long as the facts support both claims. Candebat v. Flanagan, 487 So. 2d 207, 212 (Miss. 1986).
VI. Legal Rights of Publicity and Privacy
a. the law of publicity is often compared to trademark law. It is analogous, not identical to the law of trademarks.
i. Differences between trademarks and the right of publicity

Trademarks Right of Publicity
What is Identified? “Goodwill” of Seller “Persona” of a human being
Prior Exploitation Needed? Yes – Used to Identify and distinguish goods/ services No – Prior exploitation not required.
Test of Infringement? Likelihood of confusion, mistake, or deception. Identifies the “Persona” of the plaintiff
Transfer Rules? Must Assign with “goodwill” and license with “quality control” Can assign without “goodwill” and license without “quality control”

b. false advertising
i. the difference between the two is that false advertising must be false, whereas infringement of the right of publicity doesn’t require falsity. Rogers v. Grimaldi, 875 F.2d 994, 1004. Parks v. LaFace Records, 329 F. 3d 437, 360 (6th Cir. 2003).
ii. Federal basis for private claim of false advertising is § 43(a) of Lanham Act, 15 U.S.C.A. § 1125(a).
1. rewritten in 1989 to include “goods, services, or commercial activities”
2. requires proof that defendant’s advertising representation is “false”
a. literal falsehoods and also misleading innuendo, indirect intimations and ambiguous suggestions.
i. American Home Products Corp. v. Johnson and Johnson, 577 F.2d 160 (2d Cir. 1978).
3. 2 elements to prove
a. the context of the use contains a message of the plaintiff’s endorsement, approval or affiliation
b. that message is false or misleading
iii. mutilation of author’s or performer’s work
iv. false credit
v. false endorsement
1. Abercrombie and Fitch catalogue used pictures of Hawaiian surfers in their magazine. Surfers sued in CA court, hoping to take advantage of a CA law providing for generous right of publicity. Abercrombie said Hawaiian law should apply instead because Hawaii has no publicity statute. Court said CA law should apply because magazine was circulated in CA. Downing v. Abercrombie and Fitch, 265 F.3d 994 (9th Cir. 2001).
c. Misappropriation and the right of publicity.
i. The 1977 Zacchini case could just have easily rested upon principles of misappropriation, rather than right of publicity.
ii. Misapp is not the same thing as right of publicity.
1. state law offshoot of the general law of unfair competition.
2. invoked when a plaintiff has what he considers a valuable commercial thing which he thinks someone else has taken.
3. Misapp invoked when the thing which has been taken is not protected by
a. Federal patent or copyright law
b. Or by one of the traditional state or federal law theories of unfair competition like trademark infringement or infringement of trade secret.

VII. Related Torts
a. Infliction of Emotional Distress
i. Elements
1. outrageous conduct by plaintiff
2. defendant’s intention of causing or reckless disregard of the probability of causing emotional distress
3. the plaintiff’s suffering severe or extreme emotional distress
4. actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.
a. Local tv station aired broadcast showing close up of a skull of a missing child. Family was watching. Florida Court of Appeals called the conduct “outrageous in character and exceeding the bounds of decency so as to be intolerable in a civilized community.” Armstrong v. H&C Communications, Inc., 575 So.2d 280. Claim for invasion of privacy was rejected because the broadcast was newsworthy.
ii. cruel practical jokes
1. practical joker told a woman her husband had been smashed up in accident and was lying in pain with both legs broken. The shock brought her serious and permanent mental and physical consequences. Wiklinson v. Downton (1897) 2 QBD 57.
iii. Penthouse magazine reprinted photo and story in magazine about an elementary school that separated boys and girls during recess because of fights. The girls claimed that Penthouse should have known that publication of the photos in a sexually explicit men’s magazine would offend and shock the girls and parents. There was nothing offensive about the picture or story. The objection was to its placement in the same magazine which showed objectionable material on neighboring pages. Court rejected the claim. Fudge v. Penthouse Intern., Ltd., 840 F.2d 1012, 1021 (1st Cir. 1988).
iv. Some courts say proof of intent to produce mental distress is not needed.
1. reckless disregard with knowledge of probable results also forms basis of recovery. Pierson v. News Group Publications, Inc., 549 F.Supp. 635, 643 (S.D. Ga. 1982).