Chapter Overview

Appropriation:

Appropriation of a person's name or likeness for commercial or trade purposes without permission is an invasion of privacy and may be a violation of a person's right to publicity. Use of an individual's photograph, a sketch of the person, a nickname or a stage name are all considered use of a name or likeness. However, the publication of news and information in magazines, books, newspapers and news broadcasts is not considered a trade purpose, even though the mass medium may make a profit from such publication. Consequently, persons who are named or pictured in news stories or other such material cannot sue for appropriation. Also, a news medium may republish or rebroadcast news items or photographs already carried as news stories in advertising for the mass medium to establish the quality or kind of material carried by the medium.

Anyone who seeks to use the name or likeness of an individual for commercial or trade purposes should gain written consent from that person. Even written consent may be invalid as a defense in an invasion-of-privacy suit if the consent was given many years before publication, if the person from whom the consent was gained cannot legally give consent, or if the photograph or other material that is used is substantially altered.

Courts have also recognized what is known as the right to publicity. Right-to-publicity actions are most often instituted by well-known persons who believe the unauthorized use of their name or likeness has deprived them of an opportunity to reap financial gain by selling this right to the user. In some states the right to publicity can be passed on to heirs like any other piece of property, which means that an individual's estate can control the use of his or her name and likeness after the person's death.

Intrusion:

Intruding on an individual's solitude, or intrusion, is an invasion of privacy. The legal wrong occurs as soon as the information about the individual is illegally collected. Subsequent publication of the material is not required. To establish an intrusion the plaintiff must demonstrate that he or she enjoyed a reasonable expectation of privacy when the information was collected by the defendant. One of the most serious legal problems associated with the Internet is the unauthorized collection of data about Net users. Such intrusions are usually hard to detect, and the Congress has made only limited headway in generating laws or other means to protect Internet users from this kind of invasion of privacy. The general rule is that there can be no privacy in a public place. What happens on the streets, in public places, in open view, are not situations in which a person enjoys a reasonable expectation of privacy. Contrary rulings exist on whether the use of hidden cameras and microphones constitutes an intrusion. Some plaintiffs try to sue for other kinds of legal wrongs instead of invasion of privacy in these cases. The publication or broadcast of information obtained through an intrusion by a third party, not associated with the publisher or broadcaster, is generally not regarded as a violation of the law.