Unlock document.
This document is partially blurred.
Unlock all pages and 1 million more documents.
Get Access
1
Chapters 7 and 8: Invasion of Privacy
Chapters 7 and 8
Invasion of Privacy
What’s the Big Picture for Chapters 7 and 8?
Chapters 7 and 8 concentrate on four distinct privacy torts. A tort is a civil cause of action or a
legal theory of liability upon which a person or entity can sue for damages (money). Specifically,
Chapter 7 examines the torts of appropriation (including the right of publicity) and intrusion.
Chapter 8 focuses on the torts of public disclosure of private facts and false-light invasion of
privacy.
Each of these four torts contains its own set of elements that a plaintiff must prove to win a case.
Sometimes students confuse the elements of one privacy tort with another. It is important to
emphasize to students that they should not be confused about the torts and their elements. It is
important for students to keep the torts and the elements of each tort separate in their notes. What
could be actionable under one tort may not be actionable under a different tort. Sometimes it is
helpful to describe elements of a tort as the ingredients of a recipe—if any single element or
ingredient is missing, then the tort or the recipe won’t turn out correctly, and the plaintiff will
lose.
In addition, defendants can raise various defenses in these cases. Chapters 7 and 8 cover both the
elements and the defenses to each of the four torts: appropriation, intrusion, public disclosure of
private facts, and false-light invasion of privacy.
What’s New for Chapters 7 and 8?
The nineteenth edition of the textbook featured an all-new “big picture” overview of privacy at
the start of Chapter 7. This material has been retained for the twentieth edition of the textbook.
Chapter 7 explores the three basic conceptions of privacy (such as privacy of autonomy, privacy
of space, and privacy of information) and the four primary sources of privacy rights (such as
constitutional law, statutory law, common law, and administrative law). This discussion provides
a foundation of privacy law in general before the chapter launches into a discussion on
appropriation and intrusion.
The twentieth edition of the textbook has many new cases to illustrate some of the issues related
to the four privacy torts. Chapter 7 has been updated extensively. These include appropriation
lawsuits involving Michael Jordan, Lindsay Lohan, and Albert Einstein. It also contains a more
in-depth examination of recent cases involving appropriation and video games. In addition,
2
Chapters 7 and 8: Invasion of Privacy
chapter 7 now includes a lengthy discussion of laws involving intrusion by drones, an update on
“anti-paparazzi laws,” and information about the constitutionality of “ag-gag” laws.
While chapter 8 was not updated as extensively as chapter 7, there are still a number of new
cases and issues addressed in the chapter. Chapter 8 includes a new, lengthy discussion of Hulk
Hogan’s massive 140 million dollars jury verdict against Gawker. The case is very important
because it highlights the vulnerability of media companies to large jury awards, the changing
definition of “matters of public concern,” and a timely example that students will find
interesting.
There is an effort to use fresh cases involving interesting fact patterns to demonstrate to students
that the law of privacy is always evolving. Instructors should use these examples to show
students that privacy law involves issues they will encounter in their professional lives and that it
isn’t just a “theory” they should understand.
Problem Questions
1. Roscoe Ruins is a graphic artist who makes a modest living designing T-shirts and selling
them to vendors all over Los Angeles. One of his designs includes two marionettes,
wooden sticklike figures, with the faces of “The Tonight Show” host Jimmy Fallon and
“The Late Show” host Stephen Colbert. The strings on the marionettes are being held by
two abstract figures labeled NBC and CBS. The lettering on the T-shirt says, “We don’t
always know what we’re doing, but when they pull the strings we dance!”
While the message on the T-shirt didn’t seem to make much sense, in the celebrity
dominated environs of Los Angeles, the T-shirts sold well. Colbert apparently laughed the
satire off; Fallon, however, sued for infringement of his right of publicity. “Using his
image without permission for a commercial purpose was an illegal appropriation,” his
attorney argued. Ruins’s attorney disagreed and argued that the use of such image was
permitted under the law. How would a court rule over the case?
Answer: A court would most likely rule that if Ruins had included a literal image of Fallon
on the T-shirt—say a copy of a publicity still photo, then such use of an image would be
3
Chapters 7 and 8: Invasion of Privacy
2. The Red Gap Monitor newspaper published the following item in its weekly Police Blotter
section:
Charles Ruggles, of 487 Ash, was arrested and charged with trespass on
Tuesday when he refused to leave Martin’s Appliance Store on
Kenworthy.
The owner of the store, Melvin Martin, told the police that Ruggles, who
is 18 years old, had been “hanging around” the store for days, bothering
customers. When Ruggles refused to leave, Martin said that he had called
police.
Ruggles’s father, Donald, said that his son was only asking Martin for a
job, such as washing windows, and was not causing him any harm.
Charles is a severely mentally retarded individual according to residents
in the neighborhood.
The Ruggles sued the Red Gap Monitor for invasion of privacy, arguing that while a few
close friends and teachers knew of Charles’s mental problems, his condition was not
generally known, and publishing that fact in a newspaper was clearly offensive.
a. What will the Ruggles have to prove to win the private facts case?
b. Will they win the case?
Answer: It is not likely that the Ruggles will win the case. The report published that
3. In 2006, Birch Bay Press had published the autobiography of the Grammy-winning country
and western singer Natalie Prescott, who has been a fixture in the Nashville music scene
for nearly 15 years. Her career has had its ups and downs, and in her autobiography, she
explains that she experienced the same kind of ups and downs in her personal life. In an
4
Chapters 7 and 8: Invasion of Privacy
early section of the book, Prescott tells of her early life, growing up with her brother,
Andrew Prescott (with whom she has not talked to in more than a decade), and her
alcoholic father. Her mother had died when she was only seven years old.
Prescott said that when she and her brother were in their early teen years, their father, and
even some of his friends, frequently sexually abused them both. The abuse didn’t stop until
her father died in an automobile accident when Natalie was 15 years old and her brother
was 14 years old. They both lived in a foster home until they reached adulthood. The book
contains pictures of both the Prescotts at various stages of their early life.
Natalie’s brother is now a successful stockbroker in Philadelphia. After reading this portion
of the book (which was on the bestseller list for 15 weeks), he brought an invasion of
privacy suit against his sister Natalie and the Birch Bay Press. He argues that the use of his
name and his photo is an appropriation of his name and likeness without his consent. He
says that the revelations of his early life—especially being sexually abused by his father
and his father’s friends—were a publication of private facts. He has never told anyone
about this abuse, and he was extremely humiliated and embarrassed when the story was
made public.
a. Will Prescott win his appropriation case? Why, or why not?
b. What will Prescott have to show to win his private facts case?
c. Will he win the private facts case?
4. Kitty Kat Promotions is an advertising firm located in Denver, Colorado. One of Kitty Kat
5
Chapters 7 and 8: Invasion of Privacy
Promotions’s biggest clients is Diana Prince, a plastic surgeon who practices in the Cherry
Creek section of Denver, Colorado. Selina Kyle, the owner of Kitty Kat Promotions,
decides to print some ads of Prince’s services along with photographs of her clients in the
5280 Magazine, which has a monthly distribution of 85,000. Kyle asks Prince to provide
her with some pictures she uses when discussing her procedures with her clients. Prince
gives Kyle some photographs of one of her former clients, former sitcom star Karen Starr.
Karen is now a stay-at-home mom who lives in suburban Denver, although at one time she
was a star of the sitcom Roommates. At one time, Starr and Prince were close friends, and
Prince had performed plastic surgery on Starr several years ago. Kyle uses two pictures of
Starr. The pictures show her torso from her neck to her knees, one from the front and one
from the rear. In the pictures, Starr is wearing a small white bikini.
Kyle used these pictures as ads in the 5280 Magazine. The advertisements do not use
Starr’s name or specifically state what procedure she had completed. The copy of the
advertisement, however, reads:
“Are you unhappy with your body? Is your husband unhappy with your body?
Come see Dr. Diana Prince, the mommy makeover specialist. Nobody will be
unhappy with your body ever again.”
When Starr sees these ads in the magazine, she is upset. While she signed a consent form
to have the pictures taken, the consent release said that the pictures would only be used for
office consultations and other discussions with clients. She did not agree to have her
picture used for advertisements. In addition, Starr did not get a “mommy makeover” from
Prince. Although she now has young children, she had plastic surgery before having
children. While her face is not shown in the photos, she is mortified to have pictures of her
body in such a popular magazine that many of her friends read.
Things escalate quickly when Kyle refuses to apologize to Starr. Starr argues that Kyle has
violated her privacy and that she can no longer live the quiet life she has been enjoying in
suburban Colorado. Starr files a number of suits against both Kyle and Kitty Kat
Promotions. Starr sues Prince and Kitty Kat Promotions for intrusion of privacy, arguing
that using her pictures in a magazine that many of her friends read is embarrassing. Starr
also sues Prince and Kitty Kat Promotions for appropriation, based on the agreement that
she signed with Prince. Finally, Starr sues Prince and Kitty Kat Promotions for disclosure
of private facts. At the trial, Starr testifies that she had previously discussed her procedures
in a generic way toward the end of her career because she wanted to bring attention to the
pressure that is put on actresses as they age. Starr, however, has never publically admitted
to or specified exactly what procedures she had done.
6
Chapters 7 and 8: Invasion of Privacy
a. Will Starr win her intrusion case? Why, or why not?
b. Will Star win her appropriation case?
Answer: Appropriation is defined as taking a person’s name, picture, or likeness and
c. Will Star win her private facts case?
Answer: She is unlikely to win her private facts case. They did give publicity to this
