Using a Person's Name or Likeness for Trade or Advertising - Prof. Eugene Senat, Study notes of Communication

Download Using a Person's Name or Likeness for Trade or Advertising - Prof. Eugene Senat and more Study notes Communication in PDF only on Docsity! Appropriation Appropriation – Use of a person's name, likeness or identity for trade or advertising purposes without consent. APPROPRIATION (in general): 1) How is appropriation different from the other common law privacy torts? i. It is the oldest, longest-recognized of the privacy torts (since early 1900s). ii. It is the most legally concrete of the privacy torts, which means it is the most likely for the plaintiff to win. 2) Private Right of Privacy vs. Celebrity Right of Publicity. i. Private Right of Privacy – using their name or picture without consent would cause embarrassment, shame, emotional distress, but this wouldn't hold for people who seek out and depend on publicity. They don't suffer emotional harm from public attention. ii. Celebrity Right of Publicity – unauthorized usage causes loss of money (recognized in more than 20 states) Differences between the two: 1. Right of Privacy (Private Person)  personal right  right to left alone  violation causes mental harm  right dies with the person 2. Right of Publicity (Celebrity)  property right  right to profit  violation causes monetary loss  may be inherited or otherwise transferred iii. Only well-known persons have a legally recognized economic value in their names or likeness, and expect in unusual cases, they are the only ones who can sue for damage to their right of publicity. The average person can only assert emotional damage in a right of privacy suit. iv. Private people can't claim loss of money because they don't normally make money off of their image, but a celebrity can. Celebrities can't claim publicity causes shame because they already are thoroughly publicized. 3) Zacchini v. Scripps Howard Broadcasting (1977) i. Provides the precedent for right to publicity. ii. The Court said the First Amendment doesn't protect a broadcaster who took a performer's entire act and showed it without consent as news. Hugo Zacchini, the human cannonball, was performing at state fair. He denied consent to film to free-lance TV reporter. The fair owner asked the reporter back to tape it and the entire 20-second act was broadcast on local television. 4) Can catchphrases, nicknames, pictures and voices be used without consent? i. No; stage names, pen names, pseudonyms and so forth count the same as real names in the eyes of the law. 5) How can disclaimers help advertisers who use unknown people who look or sound like celebrities? i. Disclaimers protect advertisers from an appropriation suit if they are prominent in the ad. ii. Small type at the bottom of the full-page newspaper ad will not do the trick, nor will an audio disclaimer camouflaged by music or noise in a radio spot. 6) Carson v. Here's Johnny Portable Toilets (6th Cir. 1983) – recognized catchphrase as identifiable attribute considered part of celebrity's right of publicity. i. The slogan was considered an integral part of Carson's identity. Portable toilet company owner knew it was Carson's phrase and selected it for that reason. ii. Trial court threw out Carson's complaint, saying there was no intention to deceive the public into thinking Carson endorsed the toilets, or that Carson had lost money. iii. Appeals court agreed on those counts, but it said the trial court's interpretation of the right of publicity was too narrow. "If the celebrity's identity is commercially i. Provides fairly broad protection to the mass media in most states if an individual’s name or likeness is used in advertising for a particular information medium. ii. In other words, the use of a person’s name or likeness in an advertisement for a magazine or a newspaper or a television program is not usually regarded as an appropriation if the photograph or name has been or will be a part of the medium’s news or information content. 17) What limitation is placed upon it? i. Use of a name or photo to promote a medium cannot be an explicit or even implied endorsement of the medium. 18) Is the unauthorized use of a person's name or likeness in a political advertisement considered appropriation? i. No 19)When won't consent be a defense? i. Consent given today may not be valid in the distant future, especially if it is gratuitous oral consent. Reauthorization may be needed when a name or photograph is used many years after consent was first given. ii. Some persons cannot give consent. Under the law, minors cannot give consent, they must have parental consent. iii. Those who are mentally ill cannot sign releases, doctors must do so. iv. Consent to use a photograph of a person in an advertisement or on a poster cannot be used as a defense if the photograph is materially altered or changed. A signed consent will only protect the use of the original photo with slight retouching, not wholesale modification of the particular subject in the picture or the setting in which the subject has been photographed. APPROPRIATION (in Oklahoma) 20)Does appropriation exist in Oklahoma under the common law? i. Yes; the Oklahoma Supreme Court adopted this common law invasion of privacy tort in McCormack v. Oklahoma Publishing Co. ii. State legislators also have enacted three statues regarding appropriation, giving the state four independent, separate causes of action for the wrongful appropriation of a person’s identity. Oklahoma's Appropriation Statutes: 21)Does Oklahoma statutorily recognizes appropriation as a right of privacy and as a right of publicity? If so, what are the differences? i. Yes; it does recognize appropriation as a right of privacy and as a right of publicity. ii. The state’s 1965 statute, modeled largely after older New York statues, treats appropriation as a right of privacy. In this form, appropriation is generally considered a “personal right to be left alone” and allows recovery for the embarrassment and humiliation caused by the unauthorized used of the private person’s identity. iii. Oklahoma’s 1985 statues, “copied essentially verbatim” from California law, create a comprehensive right of publicity. 22)Do Oklahoma's statutes protect against the use of a person's name, voice, signature, photograph, or likeness for advertising or trade purposes without consent? i. Yes 23) If so, how has this been applied in Oklahoma? i. In 1985, a plaintiff relied successfully upon that statue to claim that a radio station and restaurant has used her name and title as “Miss Legs of Tulsa,” without consent in an advertisement for an “I love you, Tulsa” party. 24)What constitutes "readily identifiable" in a photograph? i. Under the statutes, a person is “readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.” 25)What constitutes a commercial or advertising purpose? i. The 1985 statues, though, apply not only to advertising and selling but also to using the person’s identity “on or in” the product itself. 26)Can a plaintiff sue merely because the name or likeness, etc. were used in material that is commerically sponsored or contains paid advertising? Why? i. No ii. “Rather it shall be a question of fact whether or not the use……was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required….” 27)Under Oklahoma's statutes, what activities are exempted from claims of appropriation? i. Using the person’s identity in any news, public adders, sports broadcast or political campaign is not considered appropriation under the 1985 statutes. ii. Plays, books, magazines, musical compositions, films, radio or television programs, single and original words of fine art, and advertisements or commercial announcements for them also are explicitly exempted under the 1985 statue creating a right of publicity for deceased personalities. 28)Are parody and satire protected in Oklahoma from claims of appropriation? Why? i. Yes ii. Because they are no less protected because they provide humorous rather than serious commentary. Speech that entertains, like speech that informs, is protected by the First Amendment because ‘the line between the informing and the entertaining is too elusive fro the protection of that basic right.’ Cardtoons v. Major League Baseball Players Association (10th Cir. 1996) 29)Why does parody have value? i. It is a humorous form of social commentary that dates to Greek antiquity, and has since made regular appearances in English literature. ii. In addition, cartoons and caricatures have played a prominent role in public and political debate throughout our nation’s history. iii. Parodies expose the weakness of the idea or value that the celebrity symbolizes in society. 30)What was the court's reasoning regarding the cards as humorous commentary, commercial merchandise and commercial speech?