Legal Bytes: The Rights of Privacy and Publicity
     By John Brewer - September 2006

One often hears the term, “right of privacy,” used during conversation. But, what does it really mean, particularly in relation to the Internet. Wikipedia states that “Internet privacy consists of privacy over the media of the Internet: the ability to control what information one reveals about oneself over the Internet, and to control who can access that information. Many people use the term to mean universal Internet privacy: every user of the Internet possessing Internet privacy. Internet privacy forms a subset of computer privacy. Experts in the field of Internet privacy have a general consensus that Internet privacy does not really exist. Privacy advocates believe that it should exist.”

It is generally accepted that William L. Prosser, a noted authority in the field of legal torts (at common law, a tort was a civil wrong, other than a breach of contract, for which a legal remedy existed), identified four distinct causes of action for invasion of privacy in a law review article written in 1960. Prosser specified these causes of action as 1) appropriation of a person’s name or likeness for commercial benefit; 2) unreasonable intrusion, or intentional interference with a person’s interest in solitude or seclusion (either in his/her person or private affairs); 3) public disclosure of private facts; and, 4) publicity which places a person in a false light. This article will be concerned primarily with the first cause of action, also known as the right of publicity.

Consider the following hypothetical set of facts. Jane Doe is a party to litigation. The opposing party hires an expert witness to testify on some issue in the case. The expert is frequently used by parties in this type of litigation. The expert has a web site that lists all the cases in which the s/he has been used. The cases are identified by the names of the parties, the style of the case, and the name of the party that hired the expert. Is the web site a violation of Jane Doe’s right of publicity? It is easy to find the web page because Internet search engines have indexed the web site.

One authority states that the right of publicity is recognized in eleven States by way of the common law and that eighteen States have enacted statutes that address the right of publicity. I am particularly concerned with the status of the law in Oklahoma since that is where Jane Doe resides.

Oklahoma has two statutes. The first pertains to the use of a “deceased personality’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent.” The second statute pertains to living persons. Since the web site of the expert is for the purpose of selling a service, then such use is in violation of Oklahoma’s right of publicity statute. IMHO

There is an easy fix, the expert can simply redact the name of the party who is not the client. The effect of the web site remains the same and the non-consenting party is protected.
 

The other States that have statutory rights of publicity provisions are: California, Florida, Illinois, Indiana, Kentucky, Massachusetts, Nebraska, Nevada, New York, Ohio, Rhode Island, Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin.
 

The U.S. Supreme Court recognized the right of publicity in a 1977 case styled, Zacchini vs. Scripps-Howard Broadcasting Co. Justice White wrote the majority opinion and stated, the “Petitioner’s right of publicity here rests on more than a desire to compensate the performer for the time and effort invested in the act; the protection provided an economic incentive for him to make the investment required to produce a performance of interest to the public.”
 

The Zacchini case has an interesting set of facts. The syllabus of the opinion states that Zacchini performed a 15-second "human cannonball" act, in which he is shot from a cannon into a net some 200 feet away, [and] was, without his consent, videotaped in its entirety at a county fair in Ohio by a reporter for respondent broadcasting company and shown on a television news program later the same day. Zacchini then brought a damages action in state court against respondent, alleging an "unlawful appropriation" of his "professional property." The Ohio Supreme Court, while recognizing that petitioner had a cause of action under state law on his "right to the publicity value of his performance," nevertheless, relying on Time, Inc. v. Hill, 385 U.S. 374, rendered judgment for respondent on the ground that it 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 non-privileged purpose.
 

That Court stated that “the First and Fourteenth Amendments do not immunize the news media when they broadcast a performer's entire act without his consent, and 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, or to film or broadcast a prize fight or a baseball game, where the promoters or participants had other plans for publicizing the event. Time, Inc. v. Hill, supra, distinguished.”
 

“The broadcast of a film of petitioner's entire act poses a substantial threat to the economic value of that performance, since (1) if the public can see the act free on television it will be less willing to pay to see it at the fair, and (2) the broadcast goes to the heart of petitioner's ability to earn a living as an entertainer. The protection of petitioner's right of publicity provides an economic incentive for him to make the investment required to produce a performance of interest to the public.”
 

“While entertainment, as well as news, enjoys First Amendment protection, and entertainment itself can be important news, neither the public nor respondent will be deprived of the benefit of petitioner's performance as long as his commercial stake in his act is appropriately recognized.”
 

It is important to note that State law could vary the right of the news media to broadcast the event (subject to the provisions of federal law in the areas of copyright and trademark).
 

Jane Doe’s facts may not be as interesting as those in Zacchini but the expert can make a determination as to the application of the Oklahoma right of publicity statute after he receives a “cease and desist” letter.
 

John Brewer practices law in Oklahoma City, is a member of the Governor’s and Legislative Task Force for E-Commerce, and enjoys issues relating to eBusiness and cyberspace. Comments and questions are welcome and can be emailed to johnb@jnbrewer.com.

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