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19 Cards in this Set
- Front
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Right of Publicity
(4) Common Law elements? |
(1) The D's use of P's identity
(2) The appropriation of P's name or likeness to D's advantage, commercially or otherwise (3) Lack of consent; and (4) Resulting injury |
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Right of Publicity
(3) NY Civil Rights law elements: (Woody Allen v. National Video) |
(1) Use of his or her name, portrait, or picture (have to be pretty close on this)
(2) For commercial or trade purposes (3) Without written permission |
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Right of Privacy
What is an "invasion of privacy?" |
Unconsented, unprivileged, and unreasonable intrusion into the private life of an individual
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Right of Privacy
What are Dean Prosser's four areas of Classic Privacy? |
• 1) Protection against intrusion into one’s private affairs;
• 2) Avoidance of disclosure of one’s embarrassing private facts (if the statement is true but slanted it can still be an invasion of privacy); • 3) Protection against publicity placing one in a false light in the public eye; and o Can even be a true fact, but slanted in a way that will give the public another impression o This is very close to defamation, but with defamation “truth” can be an absolute defense. Here, the information can be true but liability can still be found. • 4) Remedies for appropriation, usually for commercial advantage, of one’s name or likeness. o AKA - “Right of Publicity” o This has become a commercial right, rather than a personal right … So, it can survive the death of a person who’s right of publicity was appropriated. o Not considered to be a common law right, so if a state does not have a right of publicity law, then that right does not exist in the state. • So, if the state doesn’t have a right of publicity law, then you can use a celeb’s image commercially |
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Right of Privacy
Can someone make themselves a public figure by filing a claim? |
Nope
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Right of Privacy
What is the Single Publication Rule? |
There is only one cause of action for a single publication. So, there would not be two causes of action for the time the magazine circulated in Chicago and then later downstate.
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Right of Privacy
What is the statute of limitations for filing an invasion of privacy claim in Illinois? |
Must be brought within one year after the article arose. (Usually defined as when the injury is discovered)????
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Right of Privacy
Who can sue for invasion of privacy? Who can sue for right of publicity? |
Only a living person can sue for invasion or privacy
When someone's celebrity is used for advertising purposes and trade, someone can bring a suit on behalf of the estate after the person dies. (this is not true for the other rights of privacy) |
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Right of Privacy
Prosser's four invasions of privacy: |
(1) Intrusion upon the P's physical solitude of seclusion;
(2) Public disclosure of private facts (ex: sexual preference) (3) False light in the public eye - if true but slanted, it can sill be an invasion of privacy (4) Appropriation of P's name or likeness for D's benefit (Right of Publicity - now basically its own action) |
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Right of Publicity
What is it? |
The right of a person's name or likeness - more like a property/commercial right, and it survives after death
Can't use for commercial purposes without their consent CA - can't use name or likeness of deceased celebrity for 70 years after their death without permission |
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Right of Privacy
What are some defenses? (3) |
(1) Consent - which can come in may ways (ie: signing a waiver at a playboy party that says "you may be recorded and appear on tv; going to a baseball game)
(2) Statute of Limitations (3) Public figures, news and other matters of public interest |
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Right of Publicity
Defenses that fall under the First Amendment |
(1) Parody
(2) Titles - Can use a celeb's name unless the title is wholly unrelated to the content of the work or was simply a disguised commercial advertisement for the sale of goods (3) Facts in Public Record - Anything that is public is fair game (4) Reproduction of Likeness or Sounds for Informative or Cultural Use - however, no defense if it merely exploits the individual portrayed (5) Completely Fictional Work (6) Newsworthiness |
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Right of Publicity
Defenses |
(1) First Amendment
(2) Consent - may be express or implied (3) Privilege with respect to public figures, news, and other matters of public interest |
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Right of Privacy
When does an action become viable? |
The right of action accrues when the publication is made for profit
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Right of Privacy
If the invasion of privacy occurs in the press or other mass media, the defendant must have had... |
actual knowledge of the falsity or have acting in reckless disregard of the truth
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Right of Privacy
What is the statute of limitations for filing an invasion of privacy in IL? |
Must be brought within one year after the article arose (harm occurs) ...
Check on this - what if the article doesn't become popular for a couple years after it was first published? |
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Right of Publicity
NY does NOT have a specific right of publicity law ... What does it have in its place? |
Civil Rights Law - No person may use the name or likeness of another person for advertising or purposes of trade without their advance, written consent
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Right of Publicity
In CA, IL, IN and some other state, if you use the likeness of some celebrity, then you have to have ..... |
Permission! If they are dead, you need permission it from the estate
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Radio Misconduct
Rule that came out of FCC v. Pacific (George Carlin case)? |
Essentially, content that is vulgar, offensive, and shocking is not entitled to absolute protection under the first amendment
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