Chapter 6: Protecting Privacy

Topic Overview:

The U.S. Constitution highlights citizens' rights to privacy and how one would be able to protect themselves from intrusion, false light, appropriation, and private facts. This chapter discusses what an individual needs prove in court and defenses a defendant can use in order to rebut the plaintiff's argument. Intrusion and appropriation are the main privacy laws that will be covered. Intrusion can either be physical or technological and the ways in which this invasion of privacy can occur is further discussed in the chapter. Lastly, appropriation means using someone's name likeness, etc. for commercial or trade purposes without permission. 

Defining Key Terms:

• False Light: A privacy tort that involves making a person seem in the public eye to be someone he or she is not. Several states do not allow false light suits.
• Distortion: Occurs when facts are omitted or the context in which material is published makes an otherwise accurate story appear false. 
• Fictionalization: Occurs when some truth, such as a person's name or identifying characteristics, is part of a largely fictional piece.
• Appropriation: Using a person's name, picture, likeness, voice, or identity for commercial or trade purposes without permission.
• Commercialization: The appropriation tort used to protect people who want privacy; prohibits using another person's name or likeness for commercial purposes without permission.
• Right of Publicity: The appropriation tort protecting a celebrity's right to have their name, picture, likeness, voice, and identity used for commercial or trade purposes only with permission. 
• Transformative Use Test: To determine whether a creator has transformed a person's name, picture, likeness, voice, or identity for artistic purposes. If so, the person cannot win a right of publicity suit against the creator. 
• Predominate Use Test: To determine whether the defendant used the plaintiff's name or picture more for commercial purposes or protected expression. 
• Intrusion Upon Seclusion: Physically or technologically disturbing another's reasonable expectation of privacy.
• Private Facts: The tort under which individuals or media are sued for publishing highly embarrassing private information that is not newsworthy or lawfully obtained from a public record.
• Data Broker: An entity that collects and stores personal information about consumers, then sells that information in other organizations. 

Important Cases:
Cox Broadcasting Corp. v. Cohn: The Supreme Court held that the interests of privacy "fade" in cases where controversial "information already appears on the public record." It is an encroachment on press freedom when the law restricts the media.

Riley v. California: Extended expectation of privacy to digitally stored information (cops cannot search phones without warrants).

Relevant Doctrine:

Plaintiff's Case for Intrusion:

Plaintiff must prove

• Reasonable expectation of privacy
• The intrusion was highly intrusive
• The intrusion was highly offensive to a reasonable person

Plaintiff's Case for Appropriation:

Plaintiff must prove

• Name, picture, likeness, voice, or identity used
• For commercial or trade purposes
• Without permission

Current Issues or Controversies:

In early October, photographer Lynn Goldsmith accused Andy Warhol of appropriating her photograph of Prince. Goldsmith had given Vanity Fair permission to use her photo of Prince only once as material to be used for an artist's illustration i.e., Warhol. However, Goldsmith later discovered that Warhol had created 15 versions of the illustration used in Vanity Fair. Goldsmith is suing Andy Warhol for artistic appropriation because she had only granted a license to Vanity Fair for one illustration.

My Questions/Concerns:

• If an individual uses a celebrities likeness/picture for their business on Etsy or their own personal website, when should an individual know that they could get sued? (A lot of people are able to do this without garnering attention but when should someone be concerned about this happening to them?)

References:

Trager, Robert., Ross, Susan Dente., & Reynolds, Amy (2018), The Law of Journalism and Mass Communication. Thousand Oaks, CA: Sage Publications.