Intellectual Property “Torts” (the law about civil infringements that lead to liability) Rights of Publicity Rights of Privacy Defamation

No single law on any of the three areas of interest Amendments to the constitution (1st, 4th, 5th, 14th) are often invoked. Over half the states have laws, but they sometimes organize the three differently.

Warren and Brandeis, 1890 Samuel D. Warren and future Supreme Court Justice Louis D. Brandeis wrote a Harvard Law Review article in which they argued that the Constitution, though never stating so directly, offers a “ right to be left alone. ” This and related ideas turned into the “ right to privacy, ” the “ right to retreat from the world ” –and in those days, the right to escape the excesses of yellow journalism.

Common Law Claims (that are then broken out among the three areas) Intrusion upon seclusion Public disclosure of private facts False light in the public eye Appropriation of name/likeness/etc.

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

Video Surveillance --Catching a Thief Can Come with a Price May 1, 2000 Employees’ rights to privacy vary from jurisdiction to jurisdiction based on the applicable state statutes and constitutions. However, identifying factors considered by courts as important may provide guidance for avoiding privacy-related problems in all jurisdictions. Factual Background – A company, responding to thefts from its nurse manager’s office, installed a security camera concealed behind ceiling tiles. Nine days after its installation, the camera recorded an employee going through a desk. That employee was confronted with the videotape and was terminated from his employment. Although the installers of the security camera claimed ignorance, the nurse manager’s office was used at times for medical treatment. Employees who may have been videotaped during medical treatment sued seeking damages based on a theory of intrusion upon seclusion. Legal Implications – In Illinois, for example, a question was raised whether the tort of intrusion upon seclusion was legally cognizable. Relying in large part on a privacy provision within the Illinois State Constitution, a federal district court applying Illinois law held that, "although the Illinois Supreme Court might not adopt the tort of intrusion upon seclusion to remedy every type of offensive intrusion in the workplace, this Court finds that the supreme court would, at a minimum, adopt this tort as a potential remedy for an employee who was surreptitiously videotaped by his employer while receiving medical treatment in the workplace." Acuff v. IBP, Inc., (C.D. Ill. 1999).

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: Would be highly offensive to a reasonable person, and Is not of legitimate concern to the public

Opps. Time to discuss those exceptions

Exceptions News, commentary, satire, critique, and some other forms of speech are protected when the information can be interpreted to be within the public’s right to know. News and information of public interest, even when about public figures with a lot at risk, is generally treated as outside the realm of protection under rights of publicity. Images of public buildings Images of people at news events Sometimes (and in some jurisdictions) “parodies” and/or “artistic renderings” of otherwise protected personae.

Probably not in the public’s interest: Bubba the love sponge over-sex-segment.htmlhttp:// over-sex-segment.html Oct. 9, 2006 An internet porn model, Hope Miller (her porn star name is Brooke Skye) is suing Bubba the Love Sponge for $150,000 over a sex segment performed on his SIRIUS Satellite Radio show back in June The suit alleges that Miller was forced to perform a sex act with another porn star using a sex toy - one that she claims was too big. The suit also claims that Miller wasn't informed about the stunt ahead of time, and despite her objections, Bubba berated her into continuing.

CLAIM V – INVASION OF PRIVACY – PUBLIC DISCLOSURE OF PRIVATE FACT (Defendants Bubba, Bubba The Love Sponge Show Staff, Harrington, Silverman, Bubba Radio Network, Inc.) 86. Plaintiff realleges all of the allegations contained in the foregoing paragraphs, and incorporates them herein by reference. 87. Plaintiff did not agree or consent to participate in a sex act involving a “strap on” dildo on the Bubba the Love Sponge radio show on or about June 12, Plaintiff informed Bubba that she did not want to participate in the sexual act with Harrington, yet Bubba and his agents continually threatened and coerced Plaintiff and ordered and allowed Harrington to perform the sex act on Plaintiff with the use of a “strap on” dildo. 89. Despite Plaintiff’s refusal to participate in the sex act and Defendants forcing her to perform in the sex act, Defendants have disclosed the incident via the radio, Internet, discussed it in chat rooms on the Internet, posted still photographs, and have otherwise transmitted this occurrence to a significant number of persons. 90. Plaintiff did not disclose this incident prior to or subsequent to the publication of the act by Defendants. 91. Disclosure of the incident is offensive and objectionable to a person of reasonable sensibilities, given the fact that Plaintiff refused to participate in the sex act and Defendants forced her to perform the sex act. 92. As a direct and proximate result of Defendants' actions, Plaintiff has been injured in an amount to be determined at trial, but believed to be in excess Fifteen Thousand Dollars ($15,000.00).

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

Lawsuit alleges false light Fired, re-hired employee takes claims to court Months after she was fired and then re-hired in a dispute between her and UT's athletic department, Suzette Fronk is suing the university for placing her in a false light. Fronk, UT assistant athletic director for business affairs, questioned spending patterns in the department and was then, she says, fired for it.

Fronk was originally fired on May 15 as a "result of the reorganization related to the merger of the University of Toledo and Medical University of Ohio," according to the letter she received from UT's human resources department. The ensuing comments repeatedly published in The Blade "were false and placed Fronk in a false light in the public eye," according to the claim filed at Ohio's Court of Claims. The comments in question pertain to those by UT Athletic Director Mike O'Brien through an conversation with Joseph H. Zerbey, IV, Blade vice president and general manager, printed during The Blade's coverage of her discontinued employment and university spending in the athletics department. In the that was sent in July, O'Brien wrote that Fronk was "eliminated" because she was the "ultimate disgruntled employee" and that "she was a tremendous blow to our morale among other things." In a press release afterward, O'Brien said he had "mischaracterized" the situation when he wrote the . Fronk was re-hired to her position in mid-July at the request of UT President Lloyd Jacobs.

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 Note that this right adheres regardless of the status of the person. However, since celebrities can usually leverage their personae for value, fussing over this right usually involves famous people.

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

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

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

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