What is privacy? What makes our lives private? Privacy is a law today that has not been known for very long. The idea of privacy that everyone has running through their minds is just to be left alone.
In reality what constitutes the crossing of the privacy line. It wasnt until 1890 when two men wrote in the Harvard Law Review about the The Right to Privacy. The two men were Samuel D. Warren and Louis D. Brandeis, the two were young lawyers who had the sense to right papers on what they thought were Americans rights to privacy. After their ideas were published they attempted to pass their knowledge on to the court systems asking to make laws that would follow their papers.
Most court systems did not accept there law until 13 years later when the state of New York passed the first privacy law. The law prohibited the commercial exploitation of an individual (Pember 240). The privacy law that the state of New York adapted well and began spreading to many states but not vert fast, it took roughly 90 years to get the law spread. Mainly because the most of the courts used the Bill of Rights as a persons privacy protection. To this day there are states that still do not have individual privacy rights. As our government more clearly defines our privacy rights then more states will join in on adopting the rights to their laws.Within the past couple years the government has developed for different torts that would accuse somebody in invasion of privacy.
The torts are listed as following: 1. Appropriation of name or likeness for trade purposes (Pember 241) 2. Intrusion upon an individuals solitude (Pember 241) 3. Publication of private information about an individual (Pember 241) 4. Publishing material that puts an individual in a false light (Pember 241) From the time that these torts were declared as the rights to privacy the law became much more complicated than before. The first form of invasion of privacy is appropriation and the book defines it as taking a persons name, picture, photograph, or likeness and using it for a commercial gain without permission (Pember 241).
In laymen terms a person cannot impersonate another without the permission of the person being impersonated. This tort is the biggest of the four when it comes invasion of privacy. Of all the torts, appropriation is the oldest and the most comprehensible until more has been added on. An obvious case to relate how the basic form of appropriation works it Haelan Laboratories, Inc. v. Topps Chewing Gum , this was a fight between to trading card companies; one wanted to sell cards with chewing gum and so did the other, but Haelan did not have the permission of the players to be on the cards.
Haelan was denied the chance to sell his cards. Appropriation not only covers the right to privacy but also the right to publicity which walks hand and hand with the first right. In the right of publicity a person who plays a character on television also has the rights to their characters that they play. For instance in the McFarland v. Miller a restaurant owner Miller had opened a place called Spanky McFarlands.
The problem that lied was the George McFarland played Spanky on a show called Little Rascals and his claim was the Miller was exploiting his character for business. In the first ruling Miller won but after that no luck because both Court of Appeals ruled in McFarlands favor, saying that if an actor plays a well known role the he is just as much an actor as his is the character and the character has privacy right also. Another case of the this same manner was the Wendt v. Host International where a bar had placed two look-a-likes in the place of business to resemble two characters from the show Cheers. The case was ruled the same as the Miller case. The cases above many stood on the topic of likeness, so what is likeness? The book defines likeness as a photograph, a painting, and a sketch-anything that suggests to readers and viewers that the plaintiff is pictured (Pember 246).
In terms that are not so hard to swallow, likeness is when a person impersonates another in any manner from picture, sound, painting. Now being alike is not breaking the law but using likeness for commercial use, that is when it becomes illegal. An example of this would be Ali v. Playgirl in this case the magazine ran an ad the had a man in the corner of the boxing ring that looked like Muhammad Ali and at the bottom of the ad it said The Greatest. Ali sued the company because the ad implied that Ali was in the ad. The state courts ruled this case an invasion of privacy on the part Playgirl magazine.
That case was an example of a painting a person without permission and being used commercial but there are other ways to be like without drawing. Look-alikes are used much throughout advertising and most of the time accepted in the past people did not take it as well. In the early stages of the 1980’s Barbara Reynolds was told that see look just the wife of John F. Kennedy, Jackie Kennedy-Onassis. She used this to her advantaged when hired onto a commercial for Christian Dior.
Onassis did not take this lightly and sued for her invasion of privacy. Onassis v. Christian Dior was a pretty open a close case and out of this a law was produced which said that it prohibits the use of representation which conveys the likeness of an individual (Pember 247). Some other cases that could be useful in research are Allen v. Mens World Outlet and Midler v. Ford Motor Co.
Even in photo parodies can a individual sue for invasion of privacy. There was a case in which Vanna White, the model on the game show Wheel of Fortune, had been made fun of through a Samsung commercial. In the commercial ad was meant that their products would last for ever saying that in many years Vanna would be replaced by a robot. This did not sit very well on Vannas part so she sued Samsung Inc. The case ended by saying that the identities of the most popular celebrities are not the only most attractive for advertisers, but the easiest to evoke without resorting to obvious means such as likeness or voice. Basically the courts ruling was that Vanna White is so popular that any attempt to make fun of her by likeness in the attempt to sell a product could result in a lawsuit.
On the other hand parodies are not always guilty. There is a case with Barry Bonds, professional baseball player, is portrayed on a trading card as a cartoon. The cartoon was a parody of Bondss attitude and likeness on trading card. The difference in this case was the card was not being use to sell something meaning that Bonds was not being exploited. Meaning that in the case Cardtoons v.
Major League Baseball Players Association, the association lost because the cards were parodies but were not used to sell something accept for itself. Unless exploited then a case on likeness will never win. People cannot be exploited unless done by the news which in most cases the news has the power to run any story, mainly 1st Amendment. This started in 1907 when a man disagreed to having his picture on the front page of the New Yorker. The man said that the New Yorker was using his picture on the front page to sell papers.
The Supreme Court denied the plaintiff by saying that the fact that newspapers and books and magazines are sold for profit does not deny them the protection of liberty of expression (Pember 250). Meaning that the papers have the right to tell the world the news even if it means exploiting your face to sell the papers, as long as the picture has a story to go along with it. Even with newsworthy cases there has been one case that claimed the news exploited him. This case was Time, Inc. v.
Hill in this case Time had taken some pictures of the Hill family in a hostage situation which was fine until Time used the pictures in there advertisements. That is where Time went wrong and were forced to award damages to Hill for exploiting him.Some people have tried to beat the system but not waiving consent purposely and suing afterwards. Consent is an agreement between the two parties to give permission to exploit that person. In one case a women tried to not sign the consent then sue later which failed because the court decided that her modeling was newsworthy enough not to exploit her. While using a person in newsworthy events and under consent there are many exceptions to the rules that can be found and have been stretched.
The truth is that being exploited in the news or for a newsworthy event in most cases will not be invasion of privacy but there are some cases that go against the grain. A major part of the appropriation tort is the Booth Rule which came about a case that involved women by the name of Shirley Booth. In Booth v. Curtis Publishing Co., Shirley Booth had been photographed in Jamaica for Holiday magazine and was also published as the feature story.
The magazine did so well from this feature that they decided to use it in the advertising for people to subscribe to the magazine. Booth did not agree with this and took them to court saying that she had signed consent for the shoot but not for the advertising. The courts did not agree with her saying that the magazine was using the ad as way show the quality of the magazine through her article. Since she had given consent to write the article even the ad was considered newsworthy making it not invasion of her privacy. In another the case the same rulings stood. Joe Montana a prominent quarterback of his time had filed lawsuit against the San Mercury News saying that they were exploiting him by selling posters without his permission, but the posters were from news clippings in the past.
The courts used the Booth rule and came to the conclusion the newsworthy event could still be used because it was protected from the first time it was published. Consent is tool that companies can use in publishing to keep them from getting into trouble. The most common form of getting consent is through a written signed by all the parties present at the time. Written consent is basically incontestable in the courtroom but there are some cases that prove otherwise just like any case. When it comes to verbal consent the plaintiff basically has to pray that they will take his/her word for it.
In some cases verbal consent will do just fine. In the case Schifano v. Greyhound Park, Inc. a couple had been pictured in a brochure for the park and they claimed they never gave consent while on the other hand the park said they gave the option for the people to leave the section if they did not want the been in the picture. With witnesses the park one the case because they had given a general consent to the group of people by giving them the option to stay or leave for the picture. The book list some reasons why consent might not work.
One, consent given today may not be valid in the distant future, especially if it is gratuitous oral consent (Pember 256). There is a case where Cole McAndrews gave Alvin Roy permission to use his photos in advertisements for his gym, but Roy waited ten years to use them and never asked for consent again. The court ruled that McAndrews life had changed drastically and that Roy should have asked for consent before placing the ads ten years later. The second reason that consent might not work as the book states, some persons cannot give consent (Pember 257). In a case where a man was not competent enough to sign the consent form so his guardian sued on is behalf.
Another good example would be a minor signs consent but does not have that power. The finally way that Pember says that consent will not work is if the photographed taken for the ad is altered or changed before publishing without discussing it with the model. Basically the law prevents a company from getting consent to take a picture then taking the picture and changing without permission and then publishing it. The consent for the picture would not work. The final points of the appropriation tort is a person personal right. This right dies with the individual.
Celebrities that are already dead and are still today used to sell products usually have to be approved through some kind of approval agency, the two major are the Curtis Management Group and the Roger Richman Agency. Pember believes that new challenges on this part of the privacy tort will emerge in the coming years. The next most powerful of the privacy torts is Intrusion, in this case this tort is not about publication but about the collection of data about someone. In most Intrusion cases if the information has been gathered in an illegal manner then you have a case of Intrusion.
The book states that the key to understanding intrusion in to understand the phase reasonable expectation of privacy(Pember 261). One of the Intrusive part of peoples lives is the Internet or that is what people think. The Internet is not as Intrusive as people suspect it to because of laws passed to keep somewhat of a privacy between the people on the web and the servers. In 1999 the US District Court passed a law that said the any information given between the person and the online service provider (OSP) will remain private unless disclosed between to two6. This was the help ensure the privacy with the people on the Web. Measures have been taken to ensure online security but to get this security people give up other options, that is why most of this technology has not made it to the market.
The Internet is a vast information resource it will be hard for any user ever to have complete privacy, it might never happen. Privacy is one of the reasons that we live our lives the way we do. If the government did not have a handle on most of the Intrusive methods then our lives would be totally public. That is why the government passed certain legislation to prevent people from intruding into our privacy. Around 15 years ago our government passed a Electronic Communications Privacy Act (EPCA) which made it illegal for people to intercept cellular telephone calls and prevents companies from producing scanners that can be used to help intercept. The law also prohibited people from tapping into any kind of electronic messaging such as Internet and email.
Another group that stepped up the personal privacy was the passing of the Drivers License Protection Act (DPPA) which was passed after the Condon v. Reno case. In this case the government decided to make all information given for a drivers license remain person and not to be given out to companies. The Supreme Court stated that all the information given to get a drivers license was to remain between the government and the person.
Another form of the same legislation was passed in 1998 but this time for children. Congress passed the Childrens Online Privacy Act, which made site operators collect information from the children so that they could be protected on the Internet. The provisions of the act in summary where that the children were to be told that the OSP was collecting information, they had there parents consent, and that the childrens information remains protected on the Internet. Celebrities live the life glamour but in many cases the press can be intrusive to their lives. The Press does have their rights to get a story but they must always keep that reasonable amount of privacy. The way that the press can be intrusive is by breaking privacy by rigging a wire in an office, using a telephoto lense, etc.
There are also legitimate ways to getting so-called private information, one is just by eavesdropping on a conversation in a public place. Technically the conversation can be heard by anybody, the same goes for chat rooms on the Internet. An example in Marks v. King Broadcasting, in this case the broadcasting company had been turned down for an interview so they just filmed Marks from outside while he was talking on the phone.
Marks filed suit saying that it was a invasion of his privacy but the court denied saying that it was open to the public. In some cases open to the public will not save the intruder. In the Onassis v. Gallela Onassis had gotten a restraining order on Gallela but he ignored it and continued taking pictures and filming so finally Gallela was found guilty of violating his restraining order. Hidden recording devices will not hold up in court due to fact that the person is being intrusive by obtaining the information.
This actually got a doctor off because he was hosting a illegal practice at his house so Time went under cover to a catch him in the act, but the case did not hold up due to the way the information was obtained.10. The ruling from that case has now precedent over any case like it. In the book it list the only times that hidden cameras are considered legal to use: -When the information is of profound importance (Pember 270) -When all other alternatives for obtaining the same information have been exhausted (Pember 270) -When the individuals due quality work and take the commitment needed to pursue to story fully (Pember 271) -When harm is prevented by information found through hidden devices (Pember 271) -When the journalist have collaborative make a decision to justify deception (Pember 271) There are ways to be able to print articles that have been found illegally and that is if the journalist is given the information and there is no evidence saying that they obtained it personally. The last two of the privacy torts are important but do not live up to the standards that appropriation and intrusion do.
The first is publicity about private facts; it is illegal to publicize private information about a person if the matter that is publicized: (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern or interest (Pember 276). An example of publicity of private facts was the publishing of Tommy Lee and Pamela Anderson in Penthouse magazine. Lee brought the case to court saying that Penthouse had published private information but the Court refused saying that the pictures had already been published in other magazines voiding the case. Often brought up in private facts are whether the names of rape victims should be disclosed. The government has got involved with it and said that the names are not to be given for three main reasons. One, people think that the victim is just as guilty as the raper; two, they think that if the victims have to go through all the publicity it would effect them mentally; third, the government feels that it would prevent girls from reporting the crimes because it would get publicized.
In the case Cox Broadcasting Co. v. Cohn, Cox was sued for disclosing the information of a rape victim but the Supreme Court overturned saying that if the information if presented to the public then it can be reported. In most states private information that might be offensive or may victimize the person can hold up in court as an invasion of privacy in the private information tort. This tort goes through all mass mediums that the information can be obtained through.
The final tort under the invasion of privacy is false light. This is the publication of false information that in turn would be offensive to a reasonable person placing the publisher of the material under false light. In Time, Inc. v.
Hill , James Hills family had been held captive in there home when the event was over the story was heavily publicized and soon made into a motion picture. According to Hill the magazine had used the family name for trade purposes, just like from above, but this time he was accusing them of false light. He said that the story contained many different situations that did not occur in the real thing. Hill stated that the movie family suffered more physical and mental damages then his real family did. From this Hill won the case and received damages according. Through years of court cases, supreme court decisions, and legislative passed by Congress the government has attempted to save every Americans privacy, so that they can leave prosperous live not in fear.
