PRIVACY I

 

1890 Harvard Law Review article by Warren and Brandeis

*"right to be let alone"

*"affront to human dignity caused by public disclosure of private facts"

 

By 1960 four distinct tort actions in privacy had been identified:

1. intrusion upon the plaintiff's seclusion or solitude

2. public disclosure of embarrassing private facts about the plaintiff

3. publicity which places the plaintiff in a false light in the public eye

4. appropriation of plaintiff's name/likeness/persona for defendant's advantage

*defendant has used plaintiff's identity or persona

*without permission

*plaintiff has been identified

*resulting in damage to plaintiff's dignity, peace of mind

DEFENSE: consent

 

CASES:

Sharman v. C. Schmidt & Sons

The plaintiff played for the Boston Celtics. To supplement his income he modeled.

Issue: a signed release

 

Cepeda v. Swift & Co.

The plaintiff was a major league baseball player.

Issue: Cepdea's contract with Wilson.

 

Motschenbacher v. R.J. Reynolds Tobacco

The plaintiff is a professional race car driver who endorses products and allows advertising to be placed on his racing car.

Issues:

1. Does CA recognize a right of privacy?

2. Is harm to dignity, emotional distress really at issue?

 

Hirsch v. Johnson & Sons

The plaintiff was a football star at the University of Wisconsin. While playing football, he acquired the nickname "Crazylegs."

Issues:

1. Does WI recognize a right of privacy?

Klug v. Sheriffs: no right to be left alone

Judevine v. Benzies-Montanye: no public disclosure of private facts

Yoeckel v. Samonig: no intrusion or intentional infliction of emotional distress

2. Isn't something other than "privacy" at issue?

3. Unfair competition

palming off

secondary meaning

likelihood of confusion

actual confusion

misappropriation

investment

reaping without sowing

 

The New York Civil Rights Act

In 1902 the highest state court in NY rejected tort actions for appropriation privacy in Roberson v. Rochester Folding Box Co., but invited the state legislature to pass a law which would cover "cover commercial exploitation of persona." In 1903 the legislature passed the New York Civil Rights Act:

§50 It is a misdemeanor if:

§51

*defendant uses plaintiff's name, portrait, or picture (in NY)

*for advertising or trade purposes

*without plaintiff's written consent

CASES:

Namath v. Sports Illustrated I

Namath's photo was used by SI (without objection) in conjunction with a news article about the 1969 Super Bowl game in which he was the winning QB. In 1972 SI reused the photo to promote subscriptions.

Issue: Is this "for advertising or trade purposes"?

Namath v. Sports Illustrated II

Issue: "incidential use"