Protections for Persons as Subjects

From Media & Entertainment Law Wypadkis

Jump to: navigation, search

Contents

Defamation

To How Many People: 1

Does the Communication Have to Be True or False: True

Highly Offensive: No - it only has to harm the reputational interest(though many probably are highly offensive)

Intent: Negligence for publication (but this differs by jx)

Post Mortem: No


  • statement is defamatory if it tends to injure the reputation of the plaintiff
  • Two Types:
    • Libel – physical form
    • Slander – spoken
  • libel proof – a plaintiff doesn’t have the requisite reputational interest
  • courts are strongly protective of humor as long as it is understood as such
  • statement must be a purported fact and not an opinion
  • colloquium is required – it must be understood as referring to the plaintiff
  • recovery may be restricted if the plaintiff doesn’t first ask for a retraction
    • must be placed in an equally conspicuous place as the offending story
  • public official applies to a public employee who appears to have substantial responsibility for government affairs
    • can be public for all purposes or public for a limited issue
  • private plaintiff must prove fault but not actual malice

Cases

Bindrim v. Mitchell

(Cal. App. 1979) Associate Judge Kingsley

FACTS: Plaintiff licensed clinical psychologist sues defendant writer for mischaracterizing him and his treatment methods

  • Dr. Bindrim uses Nude Marathons as therapy
  • Mitchell is trying to write a best seller
  • she wants to go to the class
  • Bindrim only let her into the class after she signed an agreement that she wouldn’t write about the class
  • Mitchell wrote a book called “Touching” and depicted the events of the session and Dr. Simon Herford
  • Bindrim sent letters to Doubleday and Mitchell
  • Bindrim sued for libel and won and Mitchell appeals
  • he alleged as libel:
    • suggestion that he used obscene language
    • inaccurate portrayal of what actually happened
  • he was injured in his profession
  • he was identified by certain colleagues as the character in the books

ISSUE: Whether book defamed psychologist HOLDING: Yes, defendants liable REASONING: Character was very similar to plaintiff and people who knew him could reasonably identify him with character; several witnesses identified him and his tape recordings show that the novel was based upon the sessions; Defendant's version of the sessions showed a reckless disregard for the truth; clear and convincing evidence that author and publisher had actual malice (publisher only upon reprinting of paperback) and it was appropriate for jury to assess punitives against publisher

  • Ct said in order to recover for defamation Bindrim had to prove:
  • Actual Malice – because he is a public figure
    • that the statement was made with knowledge that it was false or with reckless disregard for the truth
    • failure to investigate alone isn’t enough
  • Publication – can be to only 1 person other than the defamed
  • Burden: Clear and Convincing
  • Question of Fact Determined by the Trier of Fact
  • Damages: punitive are awarded when a public figure shows actual malice
  • No recovery: if the book is opinion or contains statements of fact
    • if the statement is unambiguously fact or opinion, the court can decide
    • but where it could be either – that is a triable issue for the jury

Ct. said there was enough to show actual malice on the part of Mitchell but not on the part of Doubleday with the first printing – before Bindrim wrote the letter Ct said that the differences between Bindrim and the book character don’t preclude recovery where he was identified by several witnesses and the recordings show the book was based substantially on the sessions Ct. said this was not an opinion and the fact that it was a novel doesn’t matter

  • the test is whether a reasonable person, reading the book, would understand that the fictional character therein pictured was, in actual fact, the plaintiff acting as described

Dissent points out:

  • this doctor doesn’t have a monopoly on this type of therapy
  • the letters didn’t assert false statements of fact – they just had trouble with the outcome
  • Publisher did not have duty to investigate prior to first publishing because it had been assured by author that book contained only fictitious characters; however, prior to paperback printing, duty arose because of the letter from plaintiff’s attorney
  • Does not matter that everyone who read the book did not identify character with doctor

Clark v. American Broadcasting Companies, Inc.

FACTS: Defendant aired presentation on prostitutes and showed image of plaintiff while discussing and contrasting prostitutes and interviews with regular women in the neighborhood, plaintiff’s face shown while commentary about prostitutes made, included frontal close-ups showing plaintiff as being slim, attractive, and stylishly dressed with earrings and long hair (plaintiff was unaware that she was being photographed)

ISSUE: Whether defendant's summary judgment motion, based upon ABC's qualified privilege protecting it against liability even where statements are defematory, was properly granted

HOLDING: Summary judgment improperly granted in defendants' favor

REASONING: Defamation Claim (Libel)

  • Trial court had duty to determine as matter of law whether broadcast was reasonably capable of defamatory interpretation
    • incorrect standard applied and should only have been granted if the broadcast was not reasonably capable of a defamatory meaning
      • Definition: tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him
      • Plaintiff being portrayed as a prostitute clearly defamatory under Michigan law
  • Ct. points out that the DC agonized over this claim
  • Ct rejects the argument that court should be cautious in letting juries decide defamation cases which involve public interest reporting

ABC has qualified privilege which protects it against liability even where statements were defamatory, but privilege lost where actual malice as defined in New York Times exists Qualified Privilge

  • if this Michigan Law is satisfied, it would bar recovery
    • the court looks at this first and will only address the First Amendment issue if necessary
  • Court must decide as a matter of law whether
  1. there is a recognized public or private interest which would justify the utterance of publication
  2. Once the privilege applies, the Court must decide whether the utterance falls within the scope of the privilege
  • Elements of the Privilege:
    • good faith
    • an interest
    • a statement, limited in scope to this purpose
    • a proper occasion
    • the publication is in the proper manner and to the proper parties only
    • this privilege doesn’t extend to plaintiffs who are not the focus of the publication = merely incidental
  • plaintiff’s participation was merely incidental so it wasn’t in the public interest and the privilege doesn’t apply

No constitutional principle requires plaintiff to prove actual malice

  • the First Amendment doesn't apply to misstatements of fact
  • Plaintiff is not public figure, not generally famous or notorious, not limited public figure
    • Limited public figure requires:
  1. “public controversy”
  • this is all controversies of interest to the public
  • might be satisfied here
  1. nature/extent of individual’s participation in controversy must be ascertained
  • Nature/extent of individual’s participation determined by considering three factors:
    • Extent which participation in the controversy is voluntary
    • Extent there is access to channels of effective communication in order to counteract false statements
    • Prominence of role played in public controversy

Ct. says she didn’t voluntarily participate, she has no access to channels to counteract the false communication, her participation was merely incidental

State Law

North Dakota

NDCC 14-02-01 General Personal Rights

  • everyone has a right to be free from personal insult, from defamation, and from injury to the person’s personal relations

NDCC 14-02-02 Defamation Classified

  1. Libel; or
  2. Slander

NDCC 14-2-03 Civil Libel Defined

  • false and unprivileged publication by writing, painting, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, obloquy, or which causes the person to be shunned or avoided, or which has a tendency to injury the person in the person’s occupation

NDCC 14-02-04 Civil Slander Defined false and unprivileged publication, other than libel, which:

  1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;
  2. Imputes to the person the present existence of an infectious, contagious, or loathsome disease;
  3. Tends directly to injure the person in respect to the person's office, profession, trade, or business, either by imputing to the person general disqualifications in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to the person's office, profession, trade, or business that has a natural tendency to lessen its profits
  4. Imputes to the person impotence or want of chastity; or
  5. By natural consequence causes actual damage.

NDCC 14-02-05 Privileged Communications one made:

  1. In the proper discharge of an official duty;
  2. In any legislative or judicial proceeding or in any other proceeding authorized by law;
  3. In a communication, without malice, to a person interested therein by one who also

is interested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or who is requested by the person interested to give the information; and

  1. By a fair and true report, without malice, of a judicial, legislative, or other public official proceeding, or of anything said in the course thereof.

In the cases provided for in subsections 3 and 4, malice is not inferred from the communication or publication

NDCC 14-02-09

  • deferential to broadcasters
  • if someone says something defamatory on the program, the company is not liable

NDCC 14-02-10 Uniform Single Publication Act

  • you get one claim per publication
  • a judgment in one jurisdiction bars action in another

California

  • also protective of broadcasters
  • if the broadcasters show they exercised care to prevent it, it won’t be liable


Advice to Clients on Content

  1. Be especially careful about portraying living people who are not public officials or figures
  2. make sure you can prove defamatory statements are true – annotate your script with sources
  3. Obtain releases whenever possible
  4. Have your attorney closely review your script for potential liability before publication – change names if you can
  5. Make sure the productions contains an Errors and Admissions Policy that includes you as the named insured

Notes

  • Libel-proof: plaintiff lacks requisite reputational interest to bring a defamation action
    • Jack Kevorkian, John Cersani, Former boyfriend of Elizabeth Taylor, convicted killer of Martin Luther King, all found to be libel-proof
  • Courts strongly protective of humor, so long as its comedic nature is understood by those viewing or hearing it

Appropriation/Right of Publicity

To How Many People: It isn't how many people, it just has to be commercial

Does the communication have to be true or false: Either or n/a - Could be true or false

Highly Offensive: No

Intent: No

Post Mortem: Varies by Jx but often

  • increasingly states have enacted states which provide for this - right of publicity
    • CA
    • TN (Elvis)

Commercial Appropriation

  • this is a privacy tort

Cases

Dora v. Frontline Video, Inc.

(Cal. 1993) Associate Judge Nott

FACTS: Plaintiff (well-known surfer at Malibu Beach) sues defendants for producing a video about famous surfers at Malibu which was a documentary that included footage of famous surfers, including plaintiff and included an audio portion of an interview with him

  • Dora didn't agree to participate and claims they didn't have the right to use his name and likeness
  • he sues for commercial appropriation
    • this came from the Warren (not the Justice) and Brandeis (the Justice) article on the 4 torts which have evolved from the right to privacy
      • Intrusion into someone’s personal affairs
      • Public Disclosure of Private Facts
      • False Light
      • Misappropriation (now known as the right to publicity)

ISSUE: Whether defendants misappropriated plaintiff's image and voice for their production

HOLDING: No, defendants had the right to use plaintiff's image and voice in their video, as he was a well-known individual in the surfing community, and was instrumental in the development of the sport in their particular geographic area

REASONING:

Ct. said this was a public interest piece

  • Program contains matters of public interest and respondent was not required to get consent to use appellants name/likeness/voice
  • Public interest in subject matter of program gives defendants constitutional protection against liability
  • Two Types of Appropriation (Johnson says this isn’t as important today)
    • Right of Publicity – uses a name and likeness for commercially exploitable opportunities
    • Appropriation – taking name and likeness and injuring feelings, that concerns one’s own piece of mind, that is mental and subjective
      • Ct said this is the claim the plaintiff is bringing because he wants to be left alone
      • the public interest protects the piece from liability
          1. public interest attaches to people who by their accomplishments or mode of living create a bona fide attention to their activities
          2. “a documentary about a certain time and place in California history, and, indeed American legend”
      • Appellant argued it didn’t meet the CA newsworthiness criteria in Maheu v. CBS, Inc. (Cal. App.)
        • 1. The social value of the facts published
        • 2. The depth of the intrusion into ostensibly private affairs
        • 3. The extent to which an individual voluntarily acceded to a position of public notoriety
      • Ct. said these only apply to Public Disclosure and not Appropriation BUT even if it did apply that analysis – it would satisfy the criteria

Ct. also said plaintiff waived his right of privacy as all images were on the beach or in the water

Right of Publicity

  • Tort of appropriation is one of four torts included in category of privacy torts: protects dignity of individual by prohibiting unauthorized use of name/likeness in offensive/embarrassing manner
  • Split of authority as to whether non-celebrity has common law right of publicity; most jurisdictions permit actions brought by anyone (celebrity or not)
  • Right of publicity is assignable and extends even past death in the majority of states
  • De minimis use of identity will not constitute violation of right of publicity
  • Most states that recognize right of publicity also recognize it postmortem (commercial property interest descendable in same manner as copyright)
  • the first case was about using someone as an endorsement for a commercial product (woman on the bag of flour)
  • now it would be using a well-known person’s face on a product
  • a book or movie can be a product
  • there doesn’t seem to be a parody exception – the First Amendment limitation is enough
  • this protects commercial value
  • this can be statutory or common law
  • evidence needed to prove consent varies – some states require written consent
  • you can get injunctive relief

Cases

Polydoros v. Twentieth Century Fox Film Corp.

(Cal. 1998) Presiding Justice Boren FACTS:

  • Plaintiff’s name and likeness was used in movie (plaintiff grew up with filmmaker) for character was very similar to plaintiff as a child
    • he claimed that the character in “The Sandlot” was him and he didn’t give permission
    • at the end of the movie, it says that the events were fictional and the similarities were coincidental *plaintiff claims commercial appropriation of identity, invasion of privacy, negligence and defamation
    • his commercial appropriation claim is under both the common law and CA Civil Code 3344

ISSUE: Whether defendants are liable to plaintiff for basing their character on him as a child

HOLDING: No

REASONING: Appellant unable to establish direct connection between use of name/likeness and a commercial purpose; court here determined that plaintiff and the character are very different and that observer of the film could not confuse the two, and that film is constitutionally protected; use of name/likeness in fictional work of art, even if created for financial gain, protected by constitutional right to free expression

Ct. said the movie is patently fictional and didn’t invade his privacy, is protected by the constitutional guarantees of free expression and is not defamatory

  • ct acknowledges similarity in name, attire and activities but says plaintiff concedes it is fiction and says he hasn’t been financially damaged
  • Ct says to succeed in his Appropriation Claim he must prove:
    • a direct connection between the use of his name and likeness and a commercial purpose
    • ct said this was never intended to apply to works of pure fiction – even if the fiction concerns a similarity or identity of names of a real person
    • court points to a difference in age that people wouldn’t be confused
    • some of the similarities didn’t make the film about his life
  • Film is constitutionally protected
    • there is no question that this is fiction and because it is obvious fantasy, the plaintiff couldn’t have suffered injury
    • the film isn’t a portrait of his life but uses his name and physical appearance which are not private facts
  • No negligence in violating the industry norm of obtaining releases because it isn’t necessary

Comments on the case:

  • EJ says the black letter law was there to have this come out the other way
    • there were a ton of similarities
  • Right of Publicity is very broad and here the court is using the First Amendment to cut it down
  • Common Law Right of Publicity is close to CA Civil Code 3344
    • “Any person who knowingly uses another’s name, voice signature, photograph or likeness in any manner or in products, merchandise or goods for the purpose of advertising, selling or soliciting purchases of products, merchandise, goods or services without prior consent shall be liable
  • Exceptions: news, public affairs, sports broadcast or account, political campaign
    • this statute provides for attorney’s fees
White v. Samsung Electronics

White v. Samsung (9th Cir. 1992) Senior Circuit Judge Goodwin

FACTS: Defendant electronics company used robot in Vanna White’s likeness for its television commercials without White’s consent or paying her; plaintiff alleges Lanham Act violation

  • Vanna White’s image was used in a Samsung ad as a robot
  • the robot had her features
  • unlike the other celebrities in the ad, she didn’t consent and she wasn’t paid
  • White sued under the common law and under CA Civil Code 3344
  • lower court granted summary judgment in favor of the defendants

ISSUE: Whether use of plaintiff's image was Lanham Act violation

HOLDING: Yes, common law right of publicity not limited to only appropriating name or likeness and plaintiff has alleged facts showing that her identity has been appropriated and trial court erred in granting the defendants summary judgment on plaintiff's common law right to publicity claim

Section 3344 - Ct agrees with the lower court:

  • says that they aren’t deciding for all purposes when a caricature or impressionistic resemblance might become a likeness but the robot at issue here isn’t a likeness

Right of Publicity - Ct. disagrees with the lower court that summary judgment was appropriate on the common law claim • California Common Law Right to Publicity Pleaded by alleging: Eastwood v. Superior Court (Cal. App. 1983)

  1. the defendant’s use of the plaintiff’s identity
  2. the appropriation of the plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise
  3. lack of consent
  4. a resulting injury

the image didn’t use the plaintiff’s likeness but the common law tort isn’t so narrow

  • court said element one could be name appropriation, picture or other likeness appropriation BUT also could be identity
  • court said the method of appropriation isn’t as important as whether the defendant did so


Dissent:

  • said there is no name or likeness here and there is no precedent for finding that identity can be appropriated and allowing this is evolving the common law which federal courts shouldn’t be doing
  • the court is extending the law, where the CA courts have taken a narrow view of these rights
Kirby v. Saga of America
  • Kirby was the lead singer of the band DLight who sang “Grove is in the Heart”
  • Saga used the Ooh La Lah character in a video game but denied using Kirby as a reference
  • Kirby sued under the common law and CA Civil Code 3344

Ct. found that there were triable issues on both claims but that the Saga character was protected so Kirby had no claim

Comments on this case:

  • she should have sued only under the common law because she had to pay under the statute as Saga was the prevailing party

Defenses

  • use may be de minimus or fleeting so no violation is found (Men in Black Clip)
  • First Amendment
  • spin the facts (Polydorous)
  • obtaining a release (for Sly but not Newt – although the law would apply equally to both)

Privacy Torts and Life Story Rights

LIfe Story Rights

  • life story rights – a series of waivers and releases to prevent suits for defamation, right of publicity and invasion of privacy and are buying cooperation with the subject in terms of getting interviews, photos, etc.
    • typically you acquire exclusive rights through an option
    • typically in an option you get 6-12 months to purchase life story rights
    • you can extend by paying an additional amount

Privacy Torts

  • there are four privacy torts
  1. Intrusion
  2. Disclosure
  3. False Light
  4. Outrage (IIED)

False Light

To How Many People: Public

Does the Communication Have to Be True: False

Highly Offensive: Yes

Intent: Yes

Post Mortem: Probably Not (same as defamation)

Elements:

  1. Publication by the plaintiff
  2. Made with Actual Malice
  • this depends on the jx and might not be required in most states
  1. Put Plaintiff in False Light
  2. Highly Offensive to a Reasonable Person

some jx have abolished this because we have defamation there is a difference from defamation because reputational interest isn’t necessary

Publication of Private Facts/Intrusion

Publication of Private Facts

To How Many People: Public

Does the Communication Have to Be True: True

Highly Offensive: Yes

Intent: Yes

Post Mortem: ?

  • privacy interest ceases with death
  • courts tend to favor defendants, especially media defendants, in determining what is newsworthy
  • a corporation cannot bring a publication cause of action
  • not all states recognize publication


Intrusion

To How Many People: n/a

Does the Communication Have to Be True: n/a

Highly Offensive: Yes

Intent: Yes

Post Mortem: n/a

Defense: Consent

Schulman v. Group W. Prods

(Cal. 1998) J. Werdegar

FACTS: Plaintiff accident victim sues defendant television show producer for scene depicting the car accident that she was involved in claiming that her privacy was invaded by the cameras and microphones, and by the subsequent airing of her accident

  • Ruth and Wayne (mother and son)
  • Ruth was pinned in the car and is now paraplegic
  • a rescue helicopter came and inside was a crew from Group W and 4MN Productions
  • a responding nurse wore a microphone and the accident scene was taped
  • it was broadcast as part of the program “On Scene: Emergency Response”
  • Wayne isn’t shown but Ruth is
  • she didn’t know the rescue was recorded and she didn’t consent
  • plaintiffs sued for publication of private facts and intrusion


ISSUE: Whether plaintiff had reasonable expectation of privacy during her rescue after the car accident

DISCUSSION: There is legitimate public concern in this case (difficulties facing recsuers), the challenged material is relevant and is not morbid or sensational prying into the plaintiff's life; on road, any passerby could have seen/heard what happened so the cameraman taping the scene didn't violate plaintiff's rights; two triable issues 1) Expectation of privacy in helicopter (ambulance); 2) Privacy in conversations with medical staff that attended to her

Ct. said summary judgment was appropriate for publication of private facts but not for intrusion Publication of Private Facts Elements:

  1. Public Disclosure
  2. of a Private Fact
  3. Which would be offensive and objectionable to the reasonable person
  4. Which is Not of Legitimate Public Concern
  • Ct said this is the critical factor

Newsworthiness is a complete bar to liability

  • Analysis:
    1. Courts should make a normative assessment of the social value of a publication
    2. Depends on the degree of intrusion
    3. the extent to which the plaintiff played an important role in the public events (or voluntarily assumed a position of notoriety)

this is a comparison of the information revealed and the nature of the event that brought the plaintiff to public attention

  • where facts about a private person are caught up in events of public interest and bear a logical relationship to the newsworthy subject of the broadcast and are not intrusive in great disproportion to their relevance this is satisfied
  • when a person is involuntarily involved in a newsworthy incident, not all aspects of the person’s life and everything they say or do is newsworthy

Ct. said the subject matter of the broadcast was of legitimate concern = automobile accidents

  • Ruth’s involvement highlighted the difficulties facing emergency workers
  • this was relevant to the newsworthiness and didn’t constitute a “morbid and sensational prying into private lives for its own sake”

Intrusion Elements

    1. Intrusion into a private place (plaintiff’s solitude or seclusion, private affairs or concerns)
    • you must show penetration of some zone of physical or sensory privacy, or obtained unwanted access to data about the plaintiff
    • the plaintiff must have had an objectively reasonable expectation of solicitude or privacy in the place, conversation or data source
      • generally you don’t have this in a public place
    1. in a Manner which is highly offensive to a Reasonable Person
    • motivation and justification are important here
    • routine reporting techniques could rarely be considered actionable intrusion
    • but violation of well-established legal principles of physical or sensory privacy-trespass into a home or wiretapping would rarely be justified
  • Ct. said the camerman’s mere presence at the accident scene wasn’t enough to satisfy element one BUT there is a triable issue about whether there was a reasonable expectation on the helicopter and in Ruth’s conversations with the rescue workers
    • a patient’s expectation of privacy in medical treatments supports this
  • a jury could find recording the victim’s conversation with rescuers and while in the helicopter highly offensive

Ct. said the press has no constitutional immunity or exemption from generally applicable laws

  • although newsworthiness is a complete bar to liability for publication of private facts, the same deference isn’t due when the claim is intrusion


  • Newsworthiness (bar to common law cause of action)
    • Involves balancing the individual’s right to privacy with the press’s First Amendment rights
  • Evaluation of newsworthiness
    • Not newsworthy simply because people might be interested in it
    • Degree of intrusion
    • Comparison between information revealed and the event that brought this event to public attention
    • Person’s involvement in newsworthy event does not open up their entire lives for public scrutiny and viewing
  • Intrusion tort
    • Elements: intrusion into private place, conversation, matter and highly offensive to reasonable person
  • Test of newsworthiness, generally
    • Social value of published facts
    • Extent of intrusion into ostensibly private matters
    • Extent to which plaintiff voluntarily assumes position of public notoriety

Outrage

To How Many People: n/a

Does the Communication Have to Be True: n/a

Highly Offensive: Yes

Intent: Yes

Post Mortem: No

Retrieved from "http://www.law.und.edu/Class/entlaw/wiki/index.php/Protections_for_Persons_as_Subjects"
Personal tools