The world of media has changed. Handheld content creation is ubiquitous. Personal media is easily accessible via social networks. Content is aggregated, sharing and commentary encouraged, and in a span of minutes, an appropriated photograph or video may go "viral," exposing private moments to millions around the world.
As the infrastructure for distribution is still in its infancy, little is done to regulate content or to police the process of content creation. As a result, it's increasingly important for all parties - content creators, content distributors, consumers, and victims of appropriation - to understand the relevant law so that an invasion of privacy may be prevented or remedied.
Appropriation of a Name or Likeness
An individual may have a cause of action for invasion of privacy when his or her name, likeness, or some other personal attribute of the person's identity has been used without permission. For example, a business may use an individual's personal photograph without consent to advertise its product. Alternatively, a person may use the name and personal information of another without consent for professional gain.
To succeed in an appropriation lawsuit, you must prove that:
1. You did not grant permission for the use of your identity.
2. The defendant utilized some protected aspect of your identity.
3. The defendant used your identity for his or her immediate and direct benefit.
The Right of Publicity
For those whose identity carries with it fame or celebrity, and thus greater commercial value, there is an additional right of publicity that prevents unauthorized commercial uses of their identity. The right of publicity is a very similar cause of action to appropriation, and many courts and legal commentators continue to muddle the two together, but, despite the trend towards unification, some differences remain. The right of publicity can only be asserted against a defendant who utilizes the plaintiff's identity for a commercial benefit.
The right of publicity is generally viewed as a license that can be "assigned" to another person, and it may even survive death. Unlike appropriation, the value in the right of publicity is tied to celebrity, and a plaintiff must prove his fame or celebrity in order to make a right of publicity claim. If you want to use the identity of a celebrity, living or dead, to promote your business, you should determine the current owner of the right of publicity and obtain permission.
Defenses to an Invasion of Privacy Claim
There are several defenses available to negate an invasion of privacy claim, whether misappropriation or the right of publicity is implicated.
News and Commentary
If a person's identity has been appropriated in connection with reporting the news or for commentary, then the First Amendment shields the defendant from liability. The case law cuts in favor of defendants. Courts have refused to attach liability in cases where identity was appropriated for use in books, magazines, newspapers, online forums, and more. The courts have found that these uses fall under the umbrella of "news and commentary." However, it should be noted that plaintiffs are not entirely without recourse - if the appropriated use bears no reasonable relationship to the news or commentary, then the defense will not stand.
Creative works are also exempt from liability for invasion of privacy if the work contains elements that materially and substantially change the content such that the work is not a mere vehicle for the appropriation itself. In other words, the creative work must be "transformative," or clearly distinguishable from the personal content that was appropriated. For example, a photographic work may be transformative, and therefore exempt from liability, if it incorporates the personal photograph of an individual into a larger collage of photographs that has been edited for color, contrast, perspective, and other artistic elements. Some states, such as Washington, expressly exempt certain creative works from liability, whereas others decide whether liability will attach on a case-by-case basis.
Get a Free Invasion of Privacy Case Review
Perhaps your name or likeliness was used against your permission. Maybe you have a question about creative works. Whatever your issue may be, an experienced attorney is your best route to an answer. Reach out to a personal injury lawyer who specializes in invasion of privacy cases to learn more and even get a free claim review at no obligation.
Contact a qualified personal injury attorney to make sure your rights are protected.