Business Law Chapter 7 Homework The Source This Formulation Prosser Privacy

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CASE 7-3

FRANK B. HALL & CO., INC. v. BUCK

Court of Appeals of Texas, Fourteenth District, 1984

678 S.W.2d 612, cert. denied, 472 U.S. 1009, 105 S.Ct. 2704, 86 L.Ed.2d 720 (1985)

http://scholar.google.com/scholar_case?

q=678+S.W.2d+612&hl=en&as_sdt=2,34&case=17495651340574040653&scilh=0

Junell, J.

[On June 1, 1976, Larry W. Buck, an established salesman in the insurance business, began

working for Frank B. Hall & Co. In the course of the ensuing months, Buck brought several

major accounts to Hall and produced substantial commission income for the firm. In

October 1976, Mendel Kaliff, then president of Frank B. Hall & Co. of Texas, informed

Buck that his salary and benefits were being reduced because of his failure to generate

sufficient income for the firm. On March 31, 1977, Kaliff and Lester Eckert, Hall’s office

manager, fired Buck. Buck was unable to procure subsequent employment with another

insurance firm. He hired an investigator, Lloyd Barber, to discover the true reasons for his

dismissal and for his inability to find other employment.

Barber contacted Kaliff, Eckert, and Virginia Hilley, a Hall employee, and told them

he was an investigator and was seeking information about Buck’s employment with the firm.

Barber conducted tape-recorded interviews with the three in September and October of

1977. Kaliff accused Buck of being disruptive, untrustworthy, paranoid, hostile, untruthful,

and of padding his expense account. Eckert referred to Buck as “a zero” and a “classical

Any act wherein the defamatory matter is intentionally or negligently communicated to a

third person is a publication. In the case of slander, the act is usually the speaking of the

words. Restatement (Second) Torts §577 comment a (1977). There is ample support in the

record to show that these individuals intentionally communicated disparaging remarks to a

third person. The jury was instructed that “Publication means to communicate defamatory

recover for a publication to which he has consented, or which he has authorized, procured or

invited, [citation]; and it may be true that Buck could assume that Hall’s employees would

give their opinion when asked they do so. However, there is nothing in the record to indicate

that Buck knew Hall’s employees would defame him when Barber made the inquiries. The

accusations made by Kaliff, Eckert and Hilley were not mere expressions of opinion but

were false and derogatory statements of fact.

* * *

A defamer cannot escape liability by showing that, although he desired to defame the

plaintiff, he did not desire to defame him to the person to whom he in fact intentionally

published the defamatory communication. The publication is complete although the

publisher is mistaken as to the identity of the person to whom the publication is made.

Restatement (Second) of Torts §577 comment 1 (1977). Likewise, communication to an

agent of the person defamed is a publication, unless the communication is invited by the

* * *

When an ambiguity exists, a fact issue is presented. The court, by submission of proper

fact issues, should let the jury render its verdict on whether the statements were fairly

susceptible to the construction placed thereon by the plaintiff. [Citation.] Here, the jury

found (1) Eckert made a statement calculated to convey that Buck had been terminated

because of serious misconduct; (2) the statement was slanderous or libelous; (3) the

statement was made with malice; (4) the statement was published; and (5) damage directly

resulted from the statement. The jury also found the statements were not substantially true.

The jury thus determined that these statements, which were capable of a defamatory

meaning, were understood as such by Burton.

* * *

We hold that the evidence supports the award of actual damages and the amount awarded

is not manifestly unjust. Furthermore, in responding to the issue on exemplary damages, the

jury was instructed that exemplary damages must be based on a finding that Hall “acted with

ill will, bad intent, malice or gross disregard to the rights of Buck.” Although there is no

*** Chapter Outcome ***

Explain the application of the various privileges to defamation suits and how they are

affected

by whether the plaintiff is a (a) public figure, (b) public offcial, or (c) private person.

Defenses to Defamation — A privilege is a legal defense to what would

otherwise be defamation; it provides immunity from liability when the

defamation furthers a societal interest of greater importance than the injury

caused by it. Three kinds of privilege apply to defamation:

Absolute privilege protects the defendant regardless of motive or intent.

It has been confined to those few situations where public policy clearly

favors complete freedom of speech and includes: (1) statements made by

participants regarding a judicial proceeding; (2) statements made by

members of Congress on the +oor of Congress; (3) statements made by

certain executive offcers while performing their governmental duty; and (4)

statements made between spouses when they are alone.

*** Chapter Outcome ***

Describe and distinguish the four torts comprising invasion of privacy.

Invasion of Privacy

Consists of four separate torts: (a) appropriation of a person’s name or

likeness; (b) unreasonable intrusion on the seclusion of another; (c)

unreasonable public disclosure of private facts; and (d) unreasonable

publicity that places another in false light in the public eye.

Appropriation — of someone’s name or likeness for personal benefit is not

permitted. Individuals have a right to exclusive use of their own name and

identity for gain. Also called right of publicity.

CASE 7-4

WHITE v. SAMSUNG ELECTRONICS AMERICA, INC.

United States Court of Appeals, Ninth Circuit, 1992

971 F.2d 1395, cert. denied, 508 U.S. 951, 113 S.Ct. 2443, 124 L.Ed.2d 660 (1993)

http://scholar.google.com/scholar_case?case=15763501998860364615&q=971+F.2d+1395&hl=en&as_sdt=2,34

Goodwin, J.

This case involves a promotional “fame and fortune” dispute. In running a particular

advertisement without Vanna White’s permission, defendants Samsung Electronics America,

Inc. (Samsung) and David Deutsch Associates, Inc. (Deutsch) attempted to capitalize on

White’s fame to enhance their fortune. White sued, alleging infringement of various

intellectual property rights, but the district court granted summary judgment in favor of the

defendants. We affirm in part, reverse in part, and remand.

Plaintiff Vanna White is the hostess of “Wheel of Fortune,” one of the most popular

game shows in television history. An estimated forty million people watch the program

daily. Capitalizing on the fame which her participation in the show has bestowed on her,

White markets her identity to various advertisers.

The dispute in this case arose out of a series of advertisements prepared for Samsung by

Deutsch. The series ran in at least half a dozen publications with widespread, and in some

cases national, circulation. Each of the advertisements in the series followed the same

The advertisement which prompted the current dispute was for Samsung videocassette

recorders (VCRs). The ad depicted a robot, dressed in a wig, gown, and jewelry which

Deutsch consciously selected to resemble White’s hair and dress. The robot was posed next

to a game ‘board which is instantly recognizable as the Wheel of Fortune game show set, in

a stance for which White is famous. The caption of the ad read: “Longest running game

* * *

White * * * argues that the district court erred in granting summary judgment to

defendants on White’s common law right of publicity claim. In Eastwood v. Superior Court,

[citation], the California court of appeal stated that the common law right of publicity cause

of action “may be pleaded by alleging (1) the defendant’s use of the plaintiff’s identity; (2)

the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or

The Eastwood court did not hold that the right of publicity cause of action could be

pleaded only by alleging an appropriation of name or likeness. Eastwood involved an

unauthorized use of photographs of Clint Eastwood and of his name. Accordingly, the

Eastwood court had no occasion to consider the extent beyond the use of name or likeness to

which the right of publicity reaches. That court held only that the right of publicity cause of

action “may be” pleaded by alleging, inter alia, appropriation of name or likeness, not that

the action may be pleaded only in those terms.

The “name or likeness” formulation referred to in Eastwood originated not as an element

of the right of publicity cause of action, but as a description of the types of cases in which

the cause of action had been recognized. The source of this formulation is Prosser, Privacy,

48 Cal.L.Rev. 383, 401–07 (1960), one of the earliest and most enduring articulations of the

common law right of publicity cause of action. In looking at the case law to that point,

Prosser recognized that right of publicity cases involved one of two basic factual scenarios:

name appropriation, and picture or other likeness appropriation. [Citation.]

Even though Prosser focused on appropriations of name or likeness in discussing the

right of publicity, he noted that “[i]t is not impossible that there might be appropriation of

publicity because “the defendants * * * for their own profit in selling their product did

appropriate part of her identity” by using a Midler sound-alike. [Citation.]

In Carson v. Here’s Johnny Portable Toilets, Inc., [citation], the defendant had marketed

portable toilets under the brand name “Here’s Johnny”—Johnny Carson’s signature “Tonight

Show” introduction—without Carson’s permission. The district court had dismissed

Carson’s Michigan common law right of publicity claim because the defendants had not

used Carson’s “name or likeness.” [Citation.] In reversing the district court, the sixth circuit

found “the district court’s conception of the right of publicity * * * too narrow” and held that

the right was implicated because the defendant had appropriated Carson’s identity by using,

inter alia, the phrase “Here’s Johnny.” [Citation.]

These cases teach not only that the common law right of publicity reaches means of

appropriation other than name or likeness, but that the specific means of appropriation are

relevant only for determining whether the defendant has in fact appropriated the plaintiff’s

identity. The right of publicity does not require that appropriations of identity be

Although the defendants in these cases avoided the most obvious means of appropriating

the plaintiffs’ identities, each of their actions directly implicated the commercial interests

which the right of publicity is designed to protect. As the Carson court explained,

[t]he right of publicity has developed to protect the commercial interest of celebrities in

their identities. The theory of the right is that a celebrity’s identity can be valuable in the

promotion of products, and the celebrity has an interest that may be protected from the

[Citation.] It is not important how the defendant has appropriated the plaintiff’s identity,

but whether the defendant has done so. Motschenbacher, Midler, and Carson teach the

impossibility of treating the right of publicity as guarding only against a laundry list of

specific means of appropriating identity. A rule which says that the right of publicity can be

infringed only through the use of nine different methods of appropriating identity merely

challenges the clever advertising strategist to come up with the tenth.

Indeed, if we treated the means of appropriation as dispositive in our analysis of the right

of publicity, we would not only weaken the right but effectively eviscerate it. The right

the most popular celebrities are not only the most attractive for advertisers, but also the

easiest to evoke without resorting to obvious means such as name, likeness, or voice.

Consider a hypothetical advertisement which depicts a mechanical robot with male

features, an African-American complexion, and a bald head. The robot is wearing black

hightop Air Jordan basketball sneakers, and a red basketball uniform with black trim, baggy

shorts, and the number 23 (though not revealing “Bulls” or “Jordan” lettering). The ad

depicts the robot dunking a basketball one-handed, stiffarmed, legs extended like open

Viewed separately, the individual aspects of the advertisement in the present case say

little. Viewed together, they leave little doubt about the celebrity the ad is meant to depict.

The female-shaped robot is wearing a long gown, blond wig, and large jewelry. Vanna White

dresses exactly like this at times, but so do many other women. The robot is in the process of

turning a block letter on a game-board.

Vanna White dresses like this while turning letters on a game-board but perhaps

similarly attired Scrabble-playing women do this as well. The robot is standing on what

looks to be the Wheel of Fortune game show set. Vanna White dresses like this, turns letters,

and does this on the Wheel of Fortune game show. She is the only one. Indeed, defendants

themselves referred to their ad as the “Vanna White” ad. We are not surprised.

Television and other media create marketable celebrity identity value. Considerable

energy and ingenuity are expended by those who have achieved celebrity value to exploit it

Intrusion — concerns the unreasonable and highly offensive interference

with a person’s solitude or seclusion. It applies to places and events or

occurrences where the individual has a heightened right of privacy on which

the wrongdoer intrudes, such as unauthorized entry into home or

eavesdropping on a private conversation. Information contained in public

records is not covered.

Public Disclosure of Private Facts — applies where private, though true,

facts about another are publicized. Distinguish “publicized” from the

“publication” required in defamation cases. “Publicized” means the private

Misuse of Legal Procedure

Comprised of three torts, each protects an individual from being subjected to

unjustifiable litigation:

Malicious Prosecution — bringing a criminal proceeding without probable

cause, for an improper purpose, resulting in a finding of not guilty.

Wrongful Civil Proceedings — like malicious prosecution, except in a civil

suit.

Abuse of Process — use of legal proceedings for purposes other than their

intended purposes, even if there is probable cause.

*** Chapter Outcome ***

Identify and describe the torts that protect against harm to property.

D. HARM TO PROPERTY

Real Property

Real property is land and anything attached to it, such as buildings, trees,

and minerals. The possessor of land has the right to its exclusive use and

quiet enjoyment.

Trespass — A person is liable for trespass to real property if he intentionally

(1) enters or remains on land in the possession of another; (2) causes a thing

or a third person to do so; or (3) fails to remove from the land a thing that he

is under a duty to remove. Liability exists even though no actual damage

occurs. Mistake is no defense. A trespass may be committed on, beneath,

or above the surface of the land.

Personal Property

Personal property is any type of property other than an interest in land;

protected interests include the retention of possession of the property, the

physical condition and usability at the present time, and the property’s

availability for use in the future.

Trespass — Trespass to personal property consists of the intentional

dispossession or unauthorized use of the personal property of another. For

trespass, the owner recovers damages for the actual harm to the property or

for loss of possession.

E. HARM TO ECONOMIC INTERESTS

Economic interests include a person’s existing and prospective contractual

relations, business reputation, name and likeness, and freedom from

deception.

*** Chapter Outcome ***

Distinguish among interference with contractual relations,

disparagement, and fraudulent misrepresentation.

Interference With Contractual Relations

An improper interference aimed at inducing a party to a contract not to

perform. Liability requires that a person act with the purpose of interfering

with another’s contract and with the knowledge that interference is

substantially certain to occur as a result of her actions.

Disparagement

Involves intentional or reckless publication of false facts which injure a

person’s economic or monetary interests. Absolute, conditional, and

constitutional privilege apply to the same extent to disparagement as they

do to defamation.

Fraudulent Misrepresentation

The intentional misrepresentation of a material fact; imposes liability for the

monetary loss caused by a justifiable reliance on the misrepresentation.

NOTE: Fig. 7-3: Intentional Torts lists the interests protected by each tort.

F. DEFENSES TO INTENTIONAL TORTS

Consent

Privilege

Conduct of a defendant is privileged, and therefore immune from liability if it

furthers a social interest such as in the case of self-defense, defense of

property and defense of others.