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what are the four areas of privacy law
- approriation for a trade purpose
- instusion upon solitude
- publication of private information
- publishing material that puts person in false light
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What is appropriation?
taking a person's name, picture, photograph, or likenss and using it for commerical gain without permission
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two right of appropriation
right of publicity: protect indviduals from economic harm from when their name or image is used for advertising or trade puspoes and not compensated
right of privacy: protect individual from emotional damage
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Details , rulings, and outcome of Comedy III v, saderup
artists created charcoal drawling of three stooges (as a single work of art it is ok), then printed them on t shirts for sale
- R: creative apropriation of celebritys can be protected as an individual expression
- O: Transformative elements test: Saderup guilty bc depiction of stooges didn't have significant exrpession
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Transformative elements test
Not Protected: reproduction is a literal transation of celebrity's image
Protected : user added other elemtnes to image (transformed it into a paraody, used name in song, used celebrity's likeness as a vechile for expression of opinon)
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details and outcome of Doe v. McFarlane
Used hocke players name and likeness for a cartoon/ comic
Predominate use test:
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Predominate Use test
Speech with a predominate artistic purpose is protected
speech with a predominate commerical purpose (ad, ad displays, false endorsement, commerical entertainment) is not
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What is the News and information exception to appropriation? What four cases exemplify this?
Fact that Broadcasts, newspaper, books that are sold for profit does not deny them libery of expression
- 1. Time Inc v. Hill
- Ingerson v. Fox
- 3. Hoffman v. Captial cities/Abc
- 4. downing v. Abercrombie
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Time Inc v. Hill
Family taken hostage in home. Best selling novel published about ordeal and exagerated details, made into broadway play, life magazine has article about play and links it to Hill family
SC: sides with Time ince
R: fact that newspapers, books, and magazines are sold for profit does not deny them the protection of liberty of expression
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Ingerson v. Fox
Exempts news broadcasts and other public affaris programing from appropriation claims
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Hoffman v. Captial Cities/ABC
- D: hoffmans photo used in a fahsion feature (put celebrity heads on modles wearing contemporary clothes)
- Photo was not an ad but an editorial copy. Picture taken from photo used in publicity of a former movie he acted in.
R: viewed in context of article as a whole, combo of fahsion , humor, and editiorial content; any commerical aspects are inextricably interwined with expressive elements, so they cannot be separated
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Downing v. Abercrombie
D: plaintiffs photo, sufer in 1960s, used in page adjacent to ad offering similar t-shirt. Publication was not a feature article (like in Hoffman) but a catalogue to sell Aber products
- R: Publisher hadn't connected the photo with the information in the article, thus was improper appropriation
- "Window dressing"
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Doctrine of Incidental use (appropriation)
- Permits fleeting or brief use of individuals name or likeness in some commerical creations
- ex. models on cover of book for amazon.com
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Booth rule (appropriation)
Use of a person's name or likeness in an ad for a magazine, newspaper, or tv program is not an appropriation if photograph or name has benn or will be part of news or information content
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Three types of consent that void appropriation
- 1. written (uncontestable)
- 2. orgal
- 3. implied: told that that image would be used for commerical purpose
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Who cannot give consent to void appropriation
- 1. under age 18
- 2. mentally ill
- 3. people in prison
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Instrusion
Cannot intrude upon the solitude and private life of a person
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What does Intrusion focus on
The actual act of gathering the information, not the publication
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What must a plaintiff in a intrusion case have?
Reasonable expectation of privacy
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What areas are not considered private
- 1. in plain sight
- 2. online (char rooms, emails stored at any time on computer of an internet service provider)
- 3. work place to what general public has access to
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Sanders v. ABC
- D: ABC sent reporter to work as telephone psychic, reporter secretly photographed conversation with co-workers
- R: in workplace which genral public does not have unfettered access, employes enjoy limited expectation of privacy n ther conversation and other interactions
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Two predominate rulings on hidden recording devices
Dietman v. Time Ince
Cassidy v. ABC
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Dietman v. Time
- D: two reporters posed as husband and wife to investigate fake doctor
- R: homeowners should not be required to take the risk that what is heard or seen in their homes will be transmittedby photography or recording to the public at large
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Cassidy v. ABC
D: Polic undercover in massage parlor, parlor asks media to secretly film polic abuses
- R: Plaintiffs (the cops) were public officers acting in the line of duty
- Filming crew was in a public business not a private home
- Fliming crew was there at invatation of operator of premis
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Bartnicki v. Vopper
D: Conversation illegally intercepted and taped by two offical of a school union and given to media
R: Broadcaster of tape were not liable bc they played not part in the illegal interception or obtainng of tape conversation
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Two elements of publicity about private facts
- Illegal to publish
- 1. what would be highly offensive to a reasonable person
- 2. is not of legitimate concern or interest
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What must a plaintiff prove in a publicity of private facts case?
- 1. Publicity of private facts
- 2. revealation must be offesnive to a reasoanble person
- 3. material not of legitimate public concern
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What is publicity? What case defined int?
Lowe v. Heart: material that is communicated to the public at large or to a great number of people
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Two important private fact cases
- 1. cox v. cohn
- 2. Florida star v. BJF
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Cox v. Cohn
d: broadcast name of rape victim against a GA shield law
R: Victims name already included in public court documents, thus is not a private fact and can be published
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Florida Star v. BJF?
- D: Poice officer mistakenly gave reporter documernt of sexual assualt victims names that was not a public record
- info was published
R:Fact that state officals are not requried to disclose such reports does not make in unlawful for a newspaper to receive them when funished by government
Newspaper may publish truthful information it obatins lawfully
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What did Sidis v. FB Publishing determine?
Legitimate public concern or interest extends to what readers and listernes actually find interesting
d: article about deadbeat child prodigiy
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Kelly v. Post publishing
- D: newspaper published horrific phto of auto accident
- R: ammenr in which story is presented doesn't have an impact on whether it is a legit public interest
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Jones v. Herald Post
D: man wrongly identified as criminal sues for publication of private info about him
R: Involuntary public people do not receive enhanced protection in privacy actions as they do in libel
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People whose lives interest with famous or newsworthy people...?
lose some privacy
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Virgil v. Time INce
Deal with private lives of newsworthy people
R: Line between public and private info is to be drawn when publicity ceases to be giving info which public is entitled and becomes morbid and seastional prying into private life for its own sake
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Invasion of privacy with storeis of the past. When are individuals never successful.... in these types of suits?
1. by individuals once in public spotlight
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Romain v. Kallinger
D: Professor of criminal justice writes book on mass murder and rapists. Victim sues that material was private
R: facts revealed wer not private but public and that even if private they are of legitimate concer to the public
"Cox v. Cohen not limited to contemporaneous events."
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Three tenants of a publication that is of legitimate concern?
- 1. not a story about a full or limited purpose public figure
- 2.Not a story of great interest
- 3. cannot be publicized simply to amuse or titlate audiences
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Two elements of a false-light invasion of privacy?
- 1. the false light the person was placed in is offensive to a reasonable person
- 2. publisher of material was at fault when publication was made
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HOw does false light claim differ from libel?
Plaintiff does not have to show court that their reputation was harmed, only that falsity caused them embarrassment
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Three logics of the newsworhty test
- 1. Leave it to the press to see if it is newworthy
- 2. focus on social norms
- 3. Require logical nexus between person whose privacy was invaded and matter of legitimate public interest
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What is the intrusion upon seclusion tort?
Instusion upon a person's private affair that is highly offensvie to the reasonable person
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Two examples of intrusion that is highly offensive
1. nader v. general motors: overzealous survelliance in public when info sought is of confidential nature
2. Dietman v. Time inc: entering someone's home on fasle pretenses
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What must a plaintiff prove in a false light claim?
defendant publically disclosed matter with reckless disregard for truth or knowledge of falsity
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Two important appropriation of name or likeness cases
1. Carson v. jonny portable toliets: protects against unauthorized commerical exploitation of celebrity identity
2. Finger v. Omini publication : Photograph of plantiff used in magazine artilce without their permission, does not violate privacy interest so long as there is a "real relationship ' between photo and article topic
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What are intentional infliction of emotional distress and breach of confidentially torts
1. when by extreme and outrageous conduct, intentionally or recklessly cause severe emotional distress
2. when professionals divulge patient or clinets cofidential info (no highly offensive test needed)
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Spilfogel v. Fox
D: show cops didn't violate privacy for recording traffic stop without person's knowledge
R: eccentric reations and behavior is not a private fact that is offensive or not of public concern
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Gates v. Discovery Communications
D: tv show depicting person involved with murder
- R: Gates was limited purpose public figure in case, no defmation bc comments were right
- Yet Discovery liable for invasion of privacy, bc failed to prove Gate's tory was newsworthy
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Smith v. Daily Mail
R: statue protecting publication of juvinellies in court is unconstitutinal prior restraitn
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