Media Law Chapters 7-8

~115 years old (new in legal terms)

idea: the same principles that give property holders the right to protect their houses and lands from trespassers should give all persons the right to protect themselves from intrusion into their private affairs

"a right to be left alone"

tort - a civil wrong (other than breach of contract) for which one may recover damages or seek an injunction
listing of the four torts

state law - highly variable

unauthorized use of one person's name or likeness to benefit another (don't have to be famous)

usually in an advertisement or promotion

usually involves profit (or at least taking away an opportunity to profit)

provides a remedy against exploitation of personal identity

protects a property interest in the value of a famous name or likeness

names/likenesses/identity can acquire commercial value

Likeness - anything that suggests the plaintiff is pictured

Painting, photo, sketch etc.

Recognizable - need not be a face

Accompanying text or context may lead to recognition

Conveys the essence and likeness of an individual

lookalikes? soundalikes? - likelihood of confusion?, deliberate imitation?, disclaimer?

Identity - part of who they are (fictional characters they play)

Ex. Carson v. Here's Johnny Portable Toilets

Did Carson have the right to the catch phrase? Yes

law exempts single and original works of fine art

literal translation of an image vs. transformed image

doea a transformed image add to public debate?

advertising and trade purpose

unauthorized bios or biopics

likeness doesn't cover general events

Non-profits not immune

News is different from advertising.

Zacchini v. Scripps-Howard Broadcasting

Human cannonball
15 second act
TV station showed it all

A perfectly legitimate FA act by the station

Still, appropriation, Court said there were other ways to
cover the event without showing the entire act

Ex. people in the background

Booth rule - using newsworthy material to subsequently advertise the
media product.

Expansive, broad protection.

ex. campaign ads, issue ads, comparative ads

The key to protection - Consent

Signed releases preferred - ex. Bethel

How long is consent good for?

What is being consented to?

Ex. digital alteration

entry without permission into another's personal space and in a manner that is highly offensive

ex. journalistic intrusion, photographers climbing walls, wiretapping etc

publication not required

the act of intrusion itself is a harm (collection of data, not publication)

Overhearing a loud conversation? NO

Greater expectation in private settings, less in public settings

Peering into an open window? From where?

A closed door meeting in a public office.

Dietemann v. Time Inc. (1971)

plumber suspected of practicing medicine

reporters obtained "deceptive entry" then , published the story

privacy of the home is paramount, but being chipped away

Miller v. NBC (1986)

camera crew followed paramedics into a private home

later showed up on an NBC promo/documentary

no newsworthy event had taken place

conduct deemed "highly offensive"

NBC should have asked permission

concerns over using hidden microphones or cameras? (guidelines)

vigilantism or undercover reporting?

Harassment? Harm? Injunction?

From a reporter committing intrusion - Press liable

Ex. Cincinnati Enquirer and Chiquita (1998)

reporter investigating potentially illegal acts

some data came from stolen voice mails

$15 million settlement

Ex. Electronic Communications Privacy Act

without consent - disclosing personal information that a reasonable person would find to be highly offensive and not of legitimate public concern
ex. medical, educational, work records

illegal if...highly offensive to a reasonable person, not of legitimate public concern or interest

Publication of TRUE information

Truth is not a defense (nor might be legally obtaining it)

publicity must be involved (3 won't work)

Was the person in public?

Was the public already aware of the fact?

Is the information in the public record? (open to public inspection)

Is the information normally confidential?

Information is in public records (police logs)

Florida Star v. BJF (1989)

Accurate information, legally obtained (from public records)

But shouldn't have been a public record under Fla. Law!

Media not held liable

What's embarrassing may not be offensive

Things in which people are interested?!

What they DO read about, not what they should/shouldn't read about!

What about HOW the material is portrayed?

Sensationalized? Graphic?

These don't make it unnewsworthy!

is there a link between the material and a newsworthy story?

ETHICS, ETHICS, ETHICS!!!

must involve publicity

subject of a publication of some sort that distorts the personality

can be based on neutral or flattering statements

portrayal as something other than they are to the point of embarrassment

publication of material that is substantially false and offensive to a reasonable person

publisher was at fault (actual malice?)

Purposeful distortion of the truth for dramatic purposes

"based on a true story"

would a reasonable person think the material was about a person?

If you change the facts - change the name!

What about using a person as a basis for a character (changed name)

"All the characters and events portrayed are fictitious. Any resemblance to real people and events is purely coincidental."

Most cases revolve around editing, writing errors, errors in judgment.

Using "representative" photos

Recreating conversations that never occurred.

Docudramas/historical fiction
Blending fact and fiction

Getting inside the head (thoughts)

Right to privacy
~115 years old (new in legal terms)
based on trespass, harassment, eavesdropping, wiretapping etc. (right to privacy vs. other FA rights)
idea: the same principles that give property holders the right to protect their houses and lands from trespassers should give all persons the right to protect themselves from intrusion into their private affairs
"a right to be left alone"

invasion of privacy involves one of four torts
tort - a civil wrong (other than breach of contract) for which one may recover damages or seek an injunction listing of the four torts
state law - highly variable

1. Appropriation (Right of Publicity)
unauthorized use of one person's name or likeness to benefit another (don't have to be famous)
usually in an advertisement or promotion
usually involves profit (or at least taking away an opportunity to profit)
provides a remedy against exploitation of personal identity

right of publicity
protects a property interest in the value of a famous name or likeness
names/likenesses/identity can acquire commercial value

A. What is a name/likeness/identity?
Name - nickname, character name etc.
Likeness - anything that suggests the plaintiff is pictured
Painting, photo, sketch etc.
Recognizable - need not be a face
Accompanying text or context may lead to recognition
Conveys the essence and likeness of an individual
lookalikes? soundalikes? - likelihood of confusion?, deliberate imitation?, disclaimer?
Identity - part of who they are (fictional characters they play)
Ex. Carson v. Here's Johnny Portable Toilets
Did Carson have the right to the catch phrase? Yes

What about parody?


law exempts single and original works of fine art
literal translation of an image vs. transformed image
doea a transformed image add to public debate?

B. What is commercial use?
advertising and trade purpose
chapter list
unauthorized bios or biopics
likeness doesn't cover general events
Non-profits not immune

C. What about news?
News is different from advertising.
What is newsworthy?
Broad protection
Zacchini v. Scripps-Howard Broadcasting
Human cannonball 15 second act TV station showed it all
A perfectly legitimate FA act by the station
Still, appropriation, Court said there were other ways to cover the event without showing the entire act

Incidental use - use caution!
Ex. people in the background
Booth rule - using newsworthy material to subsequently advertise the media product.
Expansive, broad protection.
ex. campaign ads, issue ads, comparative ads

D. Defenses
The key to protection - Consent
Signed releases preferred - ex. Bethel
How long is consent good for?
Who can give consent?
What is being consented to?
Ex. digital alteration

2. Intrusion
related to trespass
entry without permission into another's personal space and in a manner that is highly offensive
ex. journalistic intrusion, photographers climbing walls, wiretapping etc
publication not required
the act of intrusion itself is a harm (collection of data, not publication)

A. Is there an expectation of a reasonable amount of privacy?
Overhearing a loud conversation? NO
Greater expectation in private settings, less in public settings
Peering into an open window? From where?
A closed door meeting in a public office.

Dietemann v. Time Inc. (1971)
plumber suspected of practicing medicine
reporters obtained "deceptive entry" then , published the story
privacy of the home is paramount, but being chipped away

Miller v. NBC (1986)
camera crew followed paramedics into a private home
later showed up on an NBC promo/documentary
no newsworthy event had taken place
conduct deemed "highly offensive"
NBC should have asked permission

concerns over using hidden microphones or cameras? (guidelines)
ABC and Food Lion
vigilantism or undercover reporting?

Paparazzi
Harassment? Harm? Injunction?

ETHICS, ETHICS, ETHICS!!!

What about the media publishing information obtained illegally?
From someone else - Press not liable (at least for publishing it) (the source is) (though knowing it was obtained illegally may be actionable)
From a reporter committing intrusion - Press liable
Ex. Cincinnati Enquirer and Chiquita (1998)
reporter investigating potentially illegal acts
some data came from stolen voice mails
$15 million settlement
front page apology
reporter fired


New technologies complicate intrusion
Ex. Electronic Communications Privacy Act

3. Disclosure of Private Fact (Publication of Private Information)
without consent - disclosing personal information that a reasonable person would find to be highly offensive and not of legitimate public concern ex. medical, educational, work records

illegal if...highly offensive to a reasonable person, not of legitimate public concern or interest

Publication of TRUE information
Truth is not a defense (nor might be legally obtaining it)
publicity must be involved (3 won't work)

A. Is it a private fact?
Was the person in public?
Was the public already aware of the fact?
Is the information in the public record? (open to public inspection)
Is the information normally confidential?


The issue of rape
Information is in public records (police logs)
Florida Star v. BJF (1989)
Accurate information, legally obtained (from public records)
But shouldn't have been a public record under Fla. Law!
Media not held liable

see also Cox Broadcasting Co. v. Cohn (1975)

B. Is the material offensive to a reasonable person?
A very gray area
What's embarrassing may not be offensive

C. Is the material of legitimate public concern?
Things in which people are interested?!
What they DO read about, not what they should/shouldn't read about!
What about HOW the material is portrayed?
Sensationalized? Graphic?
These don't make it unnewsworthy!
is there a link between the material and a newsworthy story?


ETHICS, ETHICS, ETHICS!!!

4. False light
must involve publicity
subject of a publication of some sort that distorts the personality
can be based on neutral or flattering statements
portrayal as something other than they are to the point of embarrassment
publication of material that is substantially false and offensive to a reasonable person
publisher was at fault (actual malice?)

A. Was the material substantially false?
Fictionalization
Purposeful distortion of the truth for dramatic purposes
"based on a true story"
would a reasonable person think the material was about a person?
Name/identity
If you change the facts - change the name!
What about using a person as a basis for a character (changed name)

"All the characters and events portrayed are fictitious. Any resemblance to real people and events is purely coincidental."
not a defense!

Most cases revolve around editing, writing errors, errors in judgment.
Using "representative" photos
Ex. WJLA-TV case
Recreating conversations that never occurred.
Docudramas/historical fiction Blending fact and fiction
Getting inside the head (thoughts)

B. Is the material highly offensive?
No set standards

C. Was the publisher at fault?