False Light and Appropriation

Privacy as Contextual Integrity

Nissenbaum, Helen F., Privacy as Contextual Integrity. 76 Wash. L. Rev. No. 1, (2004): Read linked article: http://crypto.stanford.edu/portia/papers/RevnissenbaumDTP31.pdf

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Finger v. Omni Publications Int'l, Ltd. 77 N.Y.2d 138 (N.Y. 1990)

ALEXANDER, J.

Plaintiffs Joseph and Ida Finger commenced this action on behalf of themselves and their six children against defendant Omni Publications International, Ltd. seeking damages for the publication, without their consent, of a photograph of plaintiffs in conjunction with an article in Omni magazine discussing a research project relating to caffeine-aided fertilization.

The salient facts are uncontroverted. The June 1988 issue of Omni magazine included in its "Continuum" segment an article entitled "Caffeine and Fast Sperm", in which it was indicated that based on research conducted at the University of Pennsylvania School of Medicine, in vitro fertilization rates may be enhanced by exposing sperm to high concentrations of caffeine.

A photograph of plaintiffs depicting two adults surrounded by six attractive and apparently healthy children accompanied the article. The caption beneath the photograph read "Want a big family? Maybe your sperm needs a cup of java in the morning. Tests reveal that caffeine-spritzed sperm swim faster, which may increase the chances for in vitro fertilization." Neither the article nor the caption mentioned plaintiffs' names or indicated in any fashion that the adult plaintiffs used caffeine or that the children were produced through in vitro fertilization.

Plaintiffs commenced this action alleging only violations of Civil Rights Law §§ 50 and 51. Defendant moved to dismiss the complaint, arguing that its use of the photograph in conjunction with the article did not violate Civil Rights Law §§ 50 and 51 because the picture was not used for trade or advertising but to illustrate a related news article on fertility. Defendant contended that because fertility is a topic of legitimate public interest, its use of the picture fit within the "newsworthiness exception" to the prohibitions of Civil Rights Law § 50. Supreme Court granted the motion on the authority of Arrington v New York Times (55 NY2d 433) and the Appellate Division affirmed. We granted leave to appeal and now affirm the Appellate Division. Plaintiffs contend that defendant violated Civil Rights Law §§ 50 and 511 by using their photograph without their consent "for advertising purposes or for purposes of trade."

[FOOTNOTE: Section 50, entitled "Right of privacy", states:

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without first having obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

Section 51 states, in part:

Any person whose name * * * or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name * * * or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's * * * picture in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury * * * may award exemplary damages (emphasis supplied). ]

We have repeatedly observed that the prohibitions of Civil Rights Law §§ 50 and 51 are to be strictly limited to nonconsensual commercial appropriations of the name, portait or picture of a living person. These statutory provisions prohibit the use of pictures, names or portraits "for advertising purposes or for the purposes of trade" only, and nothing more (Arrington v New York Times Co., 55 NY2d 433, 435, supra; see also, Freihoffer v Hearst Corp., 65 NY2d 135; Stephano v News Group Publications, Inc., 64 NY2d 174)). The statute was a direct legislative response to our decision in Roberson v Rochester Folding Box Co. (171 NY 538) and "was drafted narrowly to encompass only the commercial use of an individual's name or likeness and no more" (Arrington v New York Times Co., 55 NY2d 433, 435, supra).

Although the statute does not define "purposes of trade" or "advertising," courts have consistently refused to construe these terms as encompassing publications concerning newsworthy events or matters of public interest (see, Stephano v News Group Publications Inc., 64 NY2d 174, 184, supra; Arrington v New York Times Co., 55 NY2d 433, 440, supra; see also, Gautier v Pro-Football, Inc. 304 NY 354; Humiston v Universal Film Mfg. Co., 189 AD 467; Lahiri v Daily Mirror, 162 Misc 776). Additionally, it is also well settled that "a picture illustrating an article on a matter of public interest is not considered used for the purpose of trade or advertising within the prohibition of the statute * * * unless it has no real relationship to the article * * * or unless the article is an advertisement in disguise" (Murray v New York Mag. Co., 27 NY2d 406, 409, quoting Dallesandro v Holt & Co., 4 AD2d 470, 471, appeal dismissed 7 NY2d 735, see also, Stephano v News Group Publicatons Inc., 64 NY2d 174, 185, supra; Arrington v New York Times Co., 55 NY2d 433, 440, supra). Plaintiffs do not contest the existence of this "newsworthiness exception" and concede that the discussion of in vitro fertilization and the use of caffeine to enhance sperm velocity and motility are newsworthy topics. They contend, however, that their photograph bears "no real relationship" to the article, that none of plaintiffs' children were conceived by in vitro fertilization or any other artificial means, and that they never participated in the caffeine-enhanced reproductive research conducted at the University of Pennslyvania.

Consequently, according to plaintiffs, there was no "real relationship" between their photograph and the article, and any relationship that may exist is too tenuous to be considered a relationship at all. They argue that there are no "external and objective" criteria, such as were found to exist in Arrington (55 NY2d 433, 441, supra) that would indicate that plaintiffs have any real or legitimate connection with the subject of caffeine-enhanced in vitro fertilization, the subject of the accompanying article and that unlike the plaintiff in Murray v New York Mag. Co. (27 NY2d 406, 409, supra) these plaintiffs had not "voluntarily become a part of the spectacle" or "visually participated in any public event inviting special attention."

Plaintiffs misperceive the "newsworthy" theme of the article, which is fertility or increased fertility. Indeed, the article, in its opening sentences, observes that caffeine "can increase a man's fertility by boosting the performance of his sperm" and further indicates that "those who are looking for a fertility tonic shouldn't head for the nearest coffee pot" because the concentrations of caffeine used in the experiment "were so high (as to) be toxic." The theme of fertility is reasonably reflected both in the caption beneath the picture, "Want a big family?", and the images used -- six healthy and attractive children with their parents to whom each child bears a striking resemblance. Clearly then, there is a "real relationship" between the fertility theme of the article and the large family depicted in the photograph. That the article also discusses in vitro fertilization as being enhanced by "caffeine-spritzed sperm" does no more than discuss a specific aspect of fertilization and does not detract from the relationship between the photograph and the article.

As we have noted, the "newsworthiness exception" should be liberally applied (see, Arrington v New York Times Co., 55 NY2d 433, 440, supra; Stephano v News Group Publications Inc., 64 NY2d 174, 184, supra). The exception applies not only to reports of political happenings and social trends as in Arrington, and to news stories and articles of consumer interest such as developments in the fashion world as in Stephano (see also, Pagan v New York Herald Tribune, 32 AD2d 341, affd 26 NY2d 941) but to matters of scientific and biological interest such as enhanced fertility and in vitro fertilization as well. Moreover, questions of "newsworthiness" are better left to reasonable editorial judgment and discretion (see, Gaeta v New York News, 62 NY2d 340, 349); judicial intervention should occur only in those instances where there is "no real relationship" between a photograph and an article or where the article is an "advertisement in disguise" (Murray v New York Mag. Co., 27 NY2d 406, 409, supra).

We conclude here that it cannot be said, as a matter of law, that there is no "real relationship" between the content of the article and the photograph of plaintiffs. Thus the use of the photograph does not violate the prohibitions of Civil Rights Law §§ 50 and 51.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977)

Mr. Justice WHITE delivered the opinion of the Court.

Petitioner, Hugo Zacchini, is an entertainer. He performs a 'human cannonball' act in which he is shot from a cannon into a net some 200 feet away. Each performance occupies some 15 seconds. In August and September 1972, petitioner was engaged to perform his act on a regular basis at the Geauga County Fair in Burton, Ohio. He performed in a fenced area, surrounded by grandstands, at the fair grounds. Members of the public attending the fair were not charged a separate admission fee to observe his act.

On August 30, a freelance reporter for Scripps-Howard Broadcasting Co., the operator of a television broadcasting station and respondent in this case, attended the fair. He carried a small movie camera. Petitioner noticed the reporter and asked him not to film the performance. The reporter did not do so on that day; but on the instructions of the producer of respondent's daily newscast, he returned the following day and videotaped the entire act. This film clip approximately 15 seconds in length, was shown on the 11 o'clock news program that night, together with favorable commentary.

Petitioner then brought this action for damages, alleging that he is 'engaged in the entertainment business,' that the act he performs is one 'invented by his father and . . . performed only by his family for the last fifty years,' that respondent 'showed and commercialized the film of his act without his consent,' and that such conduct was an 'unlawful appropriation of plaintiff's professional property.' Respondent answered and moved for summary judgment, which was granted by the trial court.

... The Ohio Supreme Court held that respondent is constitutionally privileged to include in its newscasts matters of public interest that would otherwise be protected by the right of publicity, absent an intent to injure or to appropriate for some nonprivileged purpose. If under this standard respondent had merely reported that petitioner was performing at the fair and described or commented on his act, with or without showing his picture on television, we would have a very different case. But petitioner is not contending that his appearance at the fair and his performance could not be reported by the press as newsworthy items. His complaint is that respondent filmed his entire act and displayed that film on television for the public to see and enjoy. This, he claimed, was an appropriation of his professional property. The Ohio Supreme Court agreed that petitioner had 'a right of publicity' that gave him 'personal control over commercial display and exploitation of his personality and the exercise of his talents.'4 This right of 'exclusive control over the publicity given to his performances' was said to be such a 'valuable part of the benefit which may be attained by his talents and efforts' that it was entitled to legal protection. It was also observed, or at least expressly assumed, that petitioner had not abandoned his rights by performing under the circumstances present at the Geauga County Fair Grounds.

The Ohio Supreme Court nevertheless held that the challenged invasion was privileged, saying that the press 'must be accorded broad latitude in its choice of how much it presents of each story or incident, and of the emphasis to be given to such presentation. No fixed standard which would bar the press from reporting or depicting either an entire occurrence or an entire discrete part of a public performance can be formulated which would not unduly restrict the 'breathing room' in reporting which freedom of the press requires.' 47 Ohio St.2d, at 235, 351 N.E.2d, at 461. Under this view, respondent was thus constitutionally free to film and display petitioner's entire act.

The Ohio Supreme Court relied heavily on Time, Inc. v. Hill, 385 U.S. 374 (1967), but that case does not mandate a media privilege to televise a performer's entire act without his consent. Involved in Time, Inc. v. Hill was a claim under the New York 'Right of Privacy' statute6 that Life Magazine, in the course of reviewing a new play, had connected the play with a long-past incident involving petitioner and his family and had falsely described their experience and conduct at that time. The complaint sought damages for humiliation and suffering flowing from these nondefamatory falsehoods that allegedly invaded Hill's privacy. The Court held, however, that the opening of a new play linked to an actual incident was a matter of public interest and that Hill could not recover without showing that the Life report was knowingly false or was published with reckless disregard for the truth the same rigorous standard that had been applied in New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

Time, Inc. v. Hill, which was hotly contested and decided by a divided Court, involved an entirely different tort from the 'right of publicity' recognized by the Ohio Supreme Court. As the opinion reveals in Time, Inc. v. Hill, the Court was steeped in the literature of privacy law and was aware of the developing distinctions and nuances in this branch of the law. The Court, for example, cited W. Prosser, Law of Torts 831-832 (3d ed. 1964), and the same author's well-known article, Privacy, 48 Calif.L.Rev. 383 (1960), both of which divided privacy into four distinct branches. The Court was aware that it was adjudicating a 'false light' privacy case involving a matter of public interest, not a case involving 'intrusion,' 'appropriation' of a name or likeness for the purposes of trade, or 'private details' about a non-newsworthy person or event. It is also abundantly clear that Time, Inc. v. Hill did not involve a performer, a person with a name having commercial value, or any claim to a 'right of publicity.' This discrete kind of 'appropriation' case was plainly identified in the literature cited by the Court8 and had been adjudicated in the reported cases.

The differences between these two torts are important. First, the State's interests in providing a cause of action in each instance are different. 'The interest protected' in permitting recovery for placing the plaintiff in a false light 'is clearly that of reputation, with the same overtones of mental distress as in defamation.' Prosser, supra, 48 Calif.L.Rev., at 400. By contrast, the State's interest in permitting a 'right of publicity' is in protecting the proprietary interest of the individual in his act in part to encourage such entertainment.10 As we later note, the State's interest is closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors and having little to do with protecting feelings or reputation. Second, the two torts differ in the degree to which they intrude on dissemination of information to the public. In 'false light' cases the only way to protect the interests involved is to attempt to minimize publication of the damaging matter, while in 'right of publicity' cases the only question is who gets to do the publishing. An entertainer such as petitioner usually has no objection to the widespread publication of his act as long as the gets the commercial benefit of such publication. Indeed, in the present case petitioner did not seek to enjoin the broadcast of his act; he simply sought compensation for the broadcast in the form of damages.

Nor does it appear that our later cases, such as Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); and Time, Inc. v. Firestone, 424 U.S. 448 *1976), require or furnish substantial support for the Ohio court's privilege ruling. These cases, like New York Times, emphasize the protection extended to the press by the First Amendment in defamation cases, particularly when suit is brought by a public official or a public figure. None of them involve an alleged appropriation by the press of a right of publicity existing under state law.

Moreover, Time, Inc. v. Hill, New York Times, Metromedia, Gertz, and Firestone all involved the reporting of events; in none of them was there an attempt to broadcast or publish an entire act for which the performer ordinarily gets paid. It is evident, and there is no claim here to the contrary, that petitioner's state-law right of publicity would not serve to prevent respondent from reporting the newsworthy facts about petitioner's act. Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent. The Constitution no more prevents a State from requiring respondent to compensate petitioner for broadcasting his act on television than it would privilege respondent to film and broadcast a copyrighted dramatic work without liability to the copyright owner. ...There are ample reasons for reaching this conclusion.

The broadcast of a film of petitioner's entire act poses a substantial threat to the economic value of that performance. As the Ohio court recognized, this act is the product of petitioner's own talents and energy, the end result of much time, effort, and expense. Much of its economic value lies in the 'right of exclusive control over the publicity given to his performance'; if the public can see the act free on television, it will be less willing to pay to see it at the fair. The effect of a public broadcast of the performance is similar to preventing petitioner from charging an admission fee. 'The rationale for (protecting the right of publicity) is the straightforward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay.' Kalven, Privacy in Tort Law Were Warren and Brandeis Wrong?, 31 Law & Contemp. Prob. 326, 331 (1966). Moreover, the broadcast of petitioner's entire performance, unlike the unauthorized use of another's name for purposes of trade or the incidental use of a name or picture by the press, goes to the heart of petitioner's ability to earn a living as an entertainer. Thus, in this case, Ohio has recognized what may be the strongest case for a 'right of publicity' involving, not the appropriation of an entertainer's reputation to enhance the attractiveness of a commercial product, but the appropriation of the very activity by which the entertainer acquired his reputation in the first place.

...

We conclude that although the State of Ohio may as a matter of its own law privilege the press in the circumstances of this case, the First and Fourteenth Amendments do not require it to do so.

Reversed.

Mr. Justice POWELL, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.

Disclaiming any attempt to do more than decide the narrow case before us, the Court reverses the decision of the Supreme Court of Ohio based on repeated incantation of a single formula: 'a performer's entire act.' The holding today is summed up in one sentence:

'Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent.' Ante, at 574-575.

I doubt that this formula provides a standard clear enough even for resolution of this case.1 In any event, I am not persuaded that the Court's opinion is appropriately sensitive to the First Amendment values at stake, and I therefore dissent.

Although the Court would draw no distinction, ante, at 575, I do not view respondent's action as comparable to unauthorized commercial broadcasts of sporting events, theatrical performances, and the like where the broadcaster keeps the profits. There is no suggestion here that respondent made any such use of the film. Instead, it simply reported on what petitioner concedes to be a newsworthy event, in a way hardly surprising for a television station by means of film coverage. The report was part of an ordinary daily news program, consuming a total of 15 seconds. It is a routine example of the press' fulfilling the informing function so vital to our system.

The Court's holding that the station's ordinary news report may give rise to substantial liability2 has disturbing implications, for the decision could lead to a degree of media self-censorship. Cf. Smith v. California. Hereafter, whenever a television news editor is unsure whether certain film footage received from a camera crew might be held to portray an 'entire act,'3 he may decline coverage even of clearly newsworthy events or confine the broadcast to watered-down verbal reporting, perhaps with an occasional still picture. The public is then the loser. This is hardly the kind of news reportage that the First Amendment is meant to foster...

In my view the First Amendment commands a different analytical starting point from the one selected by the Court. Rather than begin with a quantitative analysis of the performer's behavior is this or is this not his entire act? we should direct initial attention to the actions of the news media: what use did the station make of the film footage? When a film is used, as here, for a routine portion of a regular news program, I would hold that the First Amendment protects the station from a 'right of publicity' or 'appropriation' suit, absent a strong showing by the plaintiff that the news broadcast was a subterfuge or cover for private or commercial exploitation.

Optional: Carson v. Here's Johnny Portable Toilets, Inc. 698 F.2d 831 (6th Cir. 1983)

http://bulk.resource.org/courts.gov/c/F2/698/698.F2d.831.80-1720.html