Class 8

I. False Light

  1. Elements: Requires publicity that places a person in a false light, which would be highly offensive to a reasonable person.

    • Need to prove falsity.

    • Need to prove actual malice (for public figures or matters of public concern).

  2. Key Distinction: Publicity vs. Publication

    • Publicity: Wide communication to a large group of people.Publicity=communication to the public at large or a large group\text{Publicity} = \text{communication to the public at large or a large group}

    • Publication: Communication to at least one other person.Publication=communication to at least one other person\text{Publication} = \text{communication to at least one other person}

    • Significance: False light requires publicity; defamation requires publication.

  3. Case: Motorola v. Miller

    • Minority (dissent) view: False light can arise in a smaller but highly important group.

    • Majority view: False light requires publicity to the public at large.

II. Appropriation of Name or Likeness (Privacy-Based)

  1. Restatement Definition: 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 his privacy.

  2. Elements: (as discussed in class)

    1. Appropriation

    2. For his own use or benefit

      • Many court interpretations on what counts as "use" and whether monetary/commercial benefit is required.

    3. The name or likeness of another

  3. Origins & Purpose:

    • Connected to Brandeis and Warren's right to privacy (dignity/privacy aspect).

    • Evolves separately into a property-like right of publicity.

  4. Key Cases demonstrating elements/scope:

    • Rochester Folding Box Company (early 1900s): Photograph used without consent on flower wrapper; early spark for privacy discourse.

    • Bette Midler v. Ford Motor Co. (9th Cir., 1988):

      • Facts: Ford used a voice impersonator to imitate Midler for a commercial.

      • Holding: Imitation of a celebrity's distinctive voice for a commercial purpose can be actionable as appropriation (voice is a substantial identifying feature).

      • Significance: Broadens "likeness" beyond literal image to include distinctive vocal timbre.

    • Post-mortem rights: Majority of states recognize, duration varies (20-70 years, some forever).

III. Right of Publicity (Property-Like)

  1. Distinction from Appropriation:

    • Right of Publicity: Property-like claim protecting the commercial value of a person's identity (name, image, likeness).

    • Appropriation: More privacy/dignity focused, but often conflated with right of publicity in practice.

  2. Key Cases Demonstrating Property Interest and Scope:

    • Johnny Carson and Here’s Johnny Portable Toilets, Inc. (Michigan):

      • Facts: Use of nickname "Here's Johnny" tied to Carson's identity.

      • Holding: Allowed appropriation/right to publicity claim because the use of the nickname tied to Carson's identity and commercial value.

      • Significance: Courts often prefer recognizing a property-like right (right to publicity) over a dignitary right when use implicates branding, merchandising, and commercial exploitation. Protects nicknames and even distinctive voice timbre.

    • Messenger v. Gruner + Jahr Printing & Publishing Co.:

      • Significance: Underscores that a photo in journalism/editorial context can be protected by First Amendment, limiting appropriation claim unless clearly promotional.

IV. First Amendment & Defenses

  1. Newsworthiness and Editorial Context: Can shield certain uses from misappropriation claims.

  2. Political Speech: Use of an image in political messaging can be protected.

  3. Expressive Works vs. Commercial Advertising:

    • Raymond v. United Senior Association (D.C., 2006):

      • Facts: Photo of same-sex couple kissing used in political fundraising ad.

      • Holding: Solicitation for donations treated as political expression, not purely commercial advertising; First Amendment protected.

      • Significance: Context (political messaging) matters; First Amendment can limit right of publicity claims.

    • Lane v. MR Holdings (Girls Gone Wild case):

      • Facts: Plaintiff's likeness used in promotional material for an expressive video series.

      • Holding: If subject is part of an expressive work (video) rather than used to promote the product itself, claim may fail.

      • Significance: Emphasizes boundary between expressive/creative works and commercial exploitation.

    • Zucchini v. Scripps Howard:

      • Facts: Reporter's coverage of a human cannonball act (public performance) used with a feature story.

      • Holding: Since act was public and publication newsworthy, use may be privileged. Foregrounds tension between private rights and press freedom.

      • Significance: First Amendment protections constrain privacy/appropriation claims when content is newsworthy.

V. Key Tests

  1. Real Relationship Test (Finger v. Omni Publications Int’l, N.Y. Court of Appeals, 1990):

    • Definition: There must be a substantial connection between the subject's image and the article’s content or theme; the image must reinforce the article’s point.

    • Facts: Omni Magazine published article on in vitro fertilization; cover photo depicted a large family with minimal relation to topic.

    • Holding: No real relationship between family photo and article's fertility topic; no actionable appropriation.

    • Significance: Test is broad but not unlimited; images used merely because visually impressive may fail if connection to content is weak.