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| significance of the article published by Warren and Brandeis in the Harvard Law Review in 1890. | ●Origin of privacy law in U.S. ● It is the fountain from which the modern law of privacy has flowed. |
| the four areas of privacy law and basic distinctions between them. | ●Appropriation of name or likeness for trade purposes ●Intrusion upon an individual's solitude ●Publication of (truthful) private information about an individual ●Publishing material that puts an individual in a false light |
| Right to Privacy | protects an individual from the embarrassment and humiliation that can occur when a name or picture is used without consent for advertising purposes |
| Right of Publicity | protects individuals from the exploitation of their name or likeness for commercial purposes |
| Midler v. Ford Motor Co. (1988) | ●The plaintiff was not seeking copyright damages, because the song itself did not belong to her and the advertising agency had permission to use it. Instead, she sought damages for the imitation of her voice, which was claimed to be part of her identity that had been impersonated for profit without her consent. |
| Cardtoons | ●10th Circuit held cards were parodies or social commentary protected by First Amendment. ● company was using the likenesses for parody and social commentary, which is protected by the First Amendment. First Amendment protects creators and gives them rights over their work. The court said even though the cards used caricatures of the players, and the sale of the items was a commercial enterprise, the cards were parodies or social commentary protected by the First Amendment. |
| Comedy III Inc. v. Saderup | Gary Saderup made charcoal image of Three Stooges, placed image on prints and T-shirts Comedy III Inc. owns rights to Three Stooges; sued Saderup for violation of right of publicity California Supreme Court established new test in holding that Saderup had violated the Stooges’ right of publicity |
| the California Supreme Court's 2001 test for determining whether use of name/likeness is an appropriation | ●Literal translation of celebrity image is violation of right to publicity, but if transformative elements added to it, then free expression takes precedence (3 Stooges example) |
| ETW Corp. v. Jireh Publishing (2003) | ●Rationale: Work held to be creative and transformative and worthy of First Amendment protection ● This case is relevant because it highlights Publicity Rights vs The First Amendment. It draws a clearer line between what is creative, artistic expression and what the celebrity/popular figure in question has a right to claim. |
| how consent applies as an appropriation defense | ●Written consent is generally uncontestable. ●Oral consent does not offer the same protection; it can be easily contested |
| conditions when consent might not work as defense | ●Consent today may not be valid in the distant future●Some people (minors, wards of the state) cannot give consent ●Consent to use a photograph does not apply if the image is materially altered or changed |
| the major exceptions to the appropriation rule (e.g., news and information exception, doctrine of incidental use) | ●Individuals cannot sue for appropriation in a news story ●"News" has been widely interpreted by the courts to include anything that is not an explicit advertisement ○Episode of "Cops" considered a news program ○Teen girl's photos for teen magazine were newsworthy, even though included in article about another teen girl's sexual exploits -- not primarily for advertising purposes |
| intrusion | ●It is illegal to intrude, physically or otherwise, upon the solitude, seclusion or private affairs of an individual if a reasonable person would find the manner of intrusion to be highly offensive. |
| what makes intrusion distinct from the other 3 areas of privacy law | it does not have to be publicized ● May occur without trespass ● ○Eavesdropping to overhear a conversation ● ○Gathering personal information from an individual's private records ● ○Using a telephoto lens |
| the key question every court will ask in an intrusion case? | All courts will ask whether the plaintiff "enjoyed a reasonable expectation of privacy" when the information was collected |
| Know how courts treat intrusion when information is published that is obtained illegally by a journalist. | Journalists are held accountable for information they have obtained illegally (First person |
| the information was obtained illegally by a third party? | ●Journalists are not held accountable for information obtained illegally by another party and passed on to them |
| difference between illegal Difference between illegal intrusion and illegal trespass. | ●Trespass - the intentional and unauthorized entry onto land or property occupied or possessed by another ●Intrusion may occur without trespass ○Ex: Photo of person in private or secluded location |
