By Charlie Marler/Amended by Kenneth Pybus
Public Disclosure of Private Facts
1. Newsworthiness of a celebrity kid genius may defend a whatever-happened-to story from privacy tort filed; time does not change his status (Sidis v. F-R Publishing Co.)
2. California’s “social utility test” may outweigh newsworthiness as in an old-but-true-facts story about a reformed prostitute (Melvin v. Reid).
3. California’s “social utility test” did not work for a rehabilitated truck highjacker (Briscoe v. Reader’s Digest).
4. A state cannot ban and punish broadcast of private facts – names of rape victims – taken from open, privileged court records (Cox Broadcasting v. Cohn).
5. A state cannot ban publication of private facts – names of rape victims – taken from privileged police records (Florida Star v. B.J.F.).
6. A judge cannot ban use of the name and photo of a juvenile defendant in a murder case once he opens a hearing to the public (Oklahoma Publishing v. District Court).
7. General rule: Judges are extremely hesitant to rule against accurate publication of truthful information gained from public records and governmental forums.
8. A story source cannot revoke consent before publication just because he later regrets the story will reveal private facts he told about in interview (Virgil v. Time Inc.).
9. Newsworthiness is a defense when a gay man voluntarily, heroicly deflects assassin’s gun aimed at President Ford (Sipple v. San Francisco Chronicle).
10. A church can reveal private facts to its members on a need-to-know basis about a member in a disciplinary action, but once a member files an “I quit” letter, the church cannot take any action against the former member other than to recognize the resignation (Guinn v. Collinsville Church of Christ).
11. In-class, peer grading of school assignments does not violate the FERPA restrictions on release of educational records without parental consent (Owassa ISD v. Falvo).
12. A student cannot sue a university for tort damages because of release of private facts – an alleged rape perpetration – using the authority of FERPA to do so (Gonzaga University v. John Doe).
False Light
1. Media can use the absence of actual malice defense – borrowed from libel – when involuntary public figures claim damages under false light – damage via non-defamatory falsehoods (Time Inc. v. Hill).
2. “Calculated falsehoods” are per se examples of actual malice even if the story makes the involuntary public figure subject look heroic (Cantrell v. Forrest City Publishing).
Intrusion (and Trespass)
1. Reporters using married-couple ruse and hidden camera and transmitter in home office of alleged medical quack led to intrusion damages award though newsworthy story led to conviction of doctor (Dietemann v. Time Inc.).
2. On the invitation of a fire marshal, a photographer shot photo of silhouette left on floor when teen girl’s body was removed from smoke damaged room. Common custom and marshal’s invitation outweighed intrusion and trespass allegations (Fletcher v. Florida).
3. A CBS crew entered premises of New York City restaurant – cited for health code violations – with cameras rolling and lost a trespass action (Le Mistral v. CBS)
4. Reporters covering demonstration at nuclear power plant went over posted fence with demonstrators, were arrested and convicted on trespass charges (Stahl v. Oklahoma).
5. A court dictated to a photographer how close he could approach Jackie Onassis and her children in public places, but he continued to endanger the safety of the family. He was found in contempt of court (Galella v. Onassis).
6. Police consent to ride-along on warrant searches of private premises do not immunize the media from trespass and intrusion unless they have consent of residents (Wilson v. Layne). What is the effect on Fletcher?
7. “A stranger’s conduct does not suffice to remove the First Amendment shield about a matter of public concern,” wrote Justice Stevens in Bartnicki v. Vopper. Vopper aired tape made by unknown third party of cell phone call.
8. Hidden camera usage that is not “highly offensive to a reasonable person,” that is justified by a legitimate need to gather news, and that can be gathered by no other means is OK in California (Sanders v. ABC). But undercover ABC reporter who hid camera in flower on her hat and a microphone attached to her bra did not meet above criteria.
9. General rule: The First Amendment will not protect an intentional intrusion or trespass unless done with consent. Use of tapes or records made illegally by third parties, however, is protected if legitimate public concern exists.
Appropriation (or Right of Publicity)
1. A person’s photo has publicity value, and he or she owns exclusive rights to its use – a right of publicity (Haelan Laboratories v. Topps Chewing Gum).
2. Newscast of the entire act of a performer without permission is unprotected by the First Amendment (Zacchini v. Scripps-Howard Broadcasting).
3. A person’s full name need not be used for a trade usage to violate a person’s right of publicity as in “Here’s Johnny Portable Toilets” (Carson v. Here’s Johnny).
4. Protected persona can include marking and trappings a celebrity uses to create his image, as in distinctive racing car markings (Motschenbacher v. R.J. Reynolds Tobacco).
5. A sound-alike vocalist, used because Bette Midler had refused to contract to do a Mercury Sable commercial, gave impression Midler endorsed the Sable, and she won publicity damages (Midler v. Ford Motor Company).
6. Samsung exploited persona created by Vanna White with commercials featuring a blond robot and game board. Allusion usage is unprotected (White v. Samsung).
7. Freelancers can, unless prohibited by contract, sell stories about celebrities to any medium, but house-ads run by the medium implying endorsement by story subject is right of publicity violation (Cher v. Forum International).
8. A newspaper can publish promotional posters and sell souvenir editions featuring newsworthy Super Bowl heroics of Joe Montana (Montana v. Mercury News).
9. Dustin Hoffman could not plead foul when a magazine digitally placed his head on model in a designer dress; Tootsie gave it news value (Hoffman v. Capital Cities).
10. Films and books based on events that are on the public record and in the news run small risks of appropriation legal actions (Matthews v. Wozencraft).
11. Artists cannot render likenesses of celebrities and sell them with impunity as with Three Stooges on T-shirts (Comedy III Productions v. Gary Saderup Inc.).
12. The California Celebrity Rights Act made the right of publicity inheritable for 70 years, reversing effect of Lugosi v. Universal Pictures.
13. The inheritability issue as played out in Elvis Presley matters was a judicial mishmash, now being addressed by state legislatures as in Califorinia.
14. Death ends personal rights as in right of publicity, unless clarified by state statute, but copyright protection – which is property law – does not end at death.
15. Caveat: Even if grounds cannot be found for a successful right of publicity action, a publisher might face false light action in the event that photos and text lead to a non-defamatory false conclusion about the subject.
Scriptural Roots
1. “A gossip betrays confidence, but a trustworthy man keeps a secret…. A gossip betrays a confidence; so avoid a man who talks too much” (Proverbs 11:13, 20:19).
2. “If you argue your case with a neighbor, do not betray another man’s confidence, or he who hears it may shame you and you will never lose your bad reputation” (Prov. 17:9).
3. “He who covers an offense promotes love, but whoever repeats the matter separates close friends” (Proverbs 17:9).
4. “If the whole Israelite community sins unintentionally and does what is forbidden in any of the Lord’s commands, even though the community is unaware of the matter, they are guilty” (Leviticus 4:13).