1 Privacy & Publicity 15 Minutes of Fame (or not) Steve Baron March 23, 2006

2 History or Privacy Law  1890 Harvard Law Review Article “The Right to Privacy” Brandeis and Warren  Need to “retreat from the world”  Excesses of “yellow journalism”

3 Common Law Claims 1. Intrusion upon seclusion 2. Public disclosure of private facts 3. False light in the public eye 4. Appropriation of name or likeness

4 Intrusion Upon Seclusion Intrusion Upon Seclusion 1. Unauthorized intrusion or prying into plaintiff’s seclusion; 2. Intrusion offensive or objectionable to a reasonable person; 3. Matter upon which intrusion occurs must be private; 4. Intrusion causes anguish or suffering.

5 Martha

6 Public Disclosure of Private Fact A liable to B for giving publicity to a matter concerning the private life of B, if the matter publicized is the kind that: 1. Would be highly offensive to a reasonable person, and 2. Is not of legitimate concern to the public

7 Robert Ritchie (a/k/a “Kid Rock”)

8 False Light in the Public Eye 1. Publication of false fact to the public; 2. Highly offensive to reasonable person; 3. Causes damage to plaintiff.

9

10 Right of Publicity Defined  “[T]he inherent right of every human being to control the commercial use of his or her identity.” McCarthy, Right of Publicity, 2 nd Ed., 2005, Vol. 1, §1:3 McCarthy, Right of Publicity, 2 nd Ed., 2005, Vol. 1, §1:3

11 Right of Publicity Defined PROTECTED ASPECTS OF PERSONA  Name  Likeness  Distinctive Voice  Style  Role – If synonymous with actor  Nicknames “Crazy-Legs Hirsch” “Crazy-Legs Hirsch” “Here’s Johnny Porta-potties” “Here’s Johnny Porta-potties”

12 Illinois Right of Publicity Act  765 ILCS 1075/1  Effective as of  Protects the right to control and to chose whether and how to use one’s individual identity for commercial purposes  Requires written consent to use an individual’s identity for commercial purposes  Continues for 50 years after death

13 Illinois Right of Publicity Act  EXCEPTIONS: Portray, describe or impersonate individual in live performance or other literary or artistic manner; Portray, describe or impersonate individual in live performance or other literary or artistic manner; Non-commercial use (news, public affairs, sports broadcast, political campaign); Non-commercial use (news, public affairs, sports broadcast, political campaign); Identifying individual truthfully as author of work or program or performer; Identifying individual truthfully as author of work or program or performer; Promotional materials for the above-referenced; Promotional materials for the above-referenced; Professional photographers who display work at their shops (unless otherwise notified of objection). Professional photographers who display work at their shops (unless otherwise notified of objection).

14 Appropriation of Name or Likeness 1. Name or likeness of plaintiff; 2. Appropriated by defendant; 3. For some advantage, usually commercial.

15 Nussenzweig v. DiCorcia What is Art? Nussenzweig v. DiCorcia What is Art?

16 Nussenzweig v. DiCorcia  Plaintiff = Orthodox Hassidic Jew  Defendant = Professional Photographer  Act: Defendant takes photo of plaintiff (and others) without consent in Time Square – HEADS Collection  Exhibited in Pace Gallery  Pace sold all 10 limited edition prints of plaintiff for $20,000 to $30,000 each

17 Toney v. L’Oreal Copyright vs. Right of Publicity

18 Toney v. L’Oreal  Plaintiff = model  Defendant = hair care product company  Defendant uses plaintiff’s likeness on product packaging beyond term of contract.  District Court finds IRPA claim pre-empted by Copyright Act.  “Identity … is an amorphous concept that is not protected by copyright law…”

19 Quotes of the Day “The right to be let alone is indeed the beginning of all freedom.” Justice William O. Douglas “Even the smallest intrusion into private space by the unwanted gaze causes damage, because the injury caused by seeing cannot be measured.” Hezzek Re’iyyah, Encyclopedia Talmudit