The Right of Publicity: Status Under Colorado Law
| Publication year | 2004 |
| Pages | 27 |
| Citation | Vol. 33 No. 10 Pg. 27 |
2004, October, Pg. 27. The Right of Publicity: Status Under Colorado Law
Vol. 33, No. 10, Pg. 27
The Colorado Lawyer
October 2004
Vol. 33, No. 10 [Page 27]
October 2004
Vol. 33, No. 10 [Page 27]
Privacy & Information Security
The Right of Publicity: Status Under Colorado Law
by Christopher P. Beall
by Christopher P. Beall
Christopher P. Beall, Denver, is an attorney with the
intellectual property group at Faegre & Benson, LLP -
(303) 607-3656, cbeall@faegre.com - where his practice
focuses on media law and copyright and trademark litigation
The views expressed in this article should not necessarily be
attributed to Faegre & Benson or any of the firm's
clients
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In the 2001 case of Joe Dickerson & Associates, L.L.C. v.
Dittmar,1 the Colorado Supreme Court recognized for the first
time the viability under Colorado law of a claim for invasion
of privacy through an unauthorized appropriation of a
person's name or likeness. In so doing, the court
acknowledged and sought to address the tension between such a
claim and Colorado's historically strong protection for
free speech interests.2 At the same time, however, the court
explicitly avoided reaching the even more difficult question
of whether and, if so, how, Colorado law recognizes a claim
for invasion of the right of publicity.3
In the interim since that landmark Colorado decision,
numerous other courts around the country have struggled with
the thorny question of balancing free speech interests
against the commercial interests of persons whose name or
likeness has significant commercial value.4 In such cases,
there is an inherent conflict. On the one hand, there is the
right of a person to control the exploitation of the
commercial value of his or her identity and, thereby, prevent
the unjust enrichment of free-riders appropriating for
themselves the commercial value of the person's identity.
On the other hand, there is the right, and indeed the need,
in public discourse to draw upon the facts, circumstances,
and allusions of celebrities, sports stars, and other famous
people in our culture. As the Tenth Circuit Court noted in
1996:
Through their pervasive presence in the media, sports and
entertainment celebrities come to symbolize certain ideas and
values. . . . Celebrities, then, are an important element of
the shared communicative resources of our cultural domain.5
This article reviews these recent developments in the law of
commercial misappropriation6 in light of Colorado's
historic, and in some respects extraordinary, protections for
free speech interests. Based on that tradition in Colorado
law, this article discusses the likelihood that
Colorado's courts will indeed recognize a claim for
misappropriation of commercial value under the
"commercial misappropriation" prong of the right of
privacy/publicity. However, in so doing, Colorado's
courts likely will follow the lead of other jurisdictions, as
discussed below, and construe significant limitations on such
claims when they are directed against expressive speech
pertaining to public figures or matters of public concern.
The Colorado Context
The article surveys those emerging doctrines construing or
limiting the right of publicity in other jurisdictions.
First, it is important to understand the current scope of
such a doctrine in Colorado.
Invasion of Privacy by
Appropriation
In Dickerson, the Colorado Supreme Court determined that
Colorado law does recognize a claim for the tort of
"invasion of privacy by appropriation of another's
name or likeness."7 In reaching this conclusion, the
court surveyed the development of the "right of
privacy" from its perceived birth in an 1890 Harvard Law
Review article8 through its initial recognition in Colorado
in 1970 to its more recent elucidation in the context of
disclosures of confidential medical information.9
The Court reached its conclusion that Colorado law recognizes
a claim for unauthorized appropriation of the noncommercial
value in another's identity in large measure because
neither party in Dickerson contested the question and because
a significant majority of other jurisdictions have recognized
the claim, either by statute or by common law.10 In Colorado,
there is no statute that explicitly provides a cause of
action for an invasion of the right of publicity - or privacy
for that matter.11
In Dickerson, the plaintiff had brought suit against a
private investigator who had published a newsletter for his
clients and potential clients - "The Dickerson
Report." In this newsletter, one article recounted the
private investigator's success in uncovering the
plaintiff's theft of bearer bonds from a retired
schoolteacher and the plaintiff's subsequent prosecution,
conviction, and restitution.12
Although the plaintiff initially brought a claim for
defamation, the plaintiff did not dispute on appeal that the
essential facts recounted in the private investigator's
newsletter article were substantially true, and she did not
dispute that the photograph of her accompanying the
newsletter article was a copy of the public record mug shot
of the plaintiff.13 The plaintiff conceded that much of the
same information concerning her arrest, trial, and conviction
had already been published in a local newspaper.14
Nevertheless, she claimed that it was the private
investigator's newsletter - which she characterized as
commercial speech in the form of an "infomercial" -
that caused her substantial emotional distress.15
Rather than contesting the cognizability of a
misappropriation claim under Colorado law, the parties in
Dickerson differed over whether Colorado law requires a
plaintiff to show that his or her name or likeness possesses
a pre-existing commercial value. This dispute arose because
the Restatement (Second) of Torts16 (and the prior version of
the Colorado Civil Jury Instructions, then based on the
Restatement) refers to the commercial value of a
plaintiff's name or likeness, albeit without explicitly
requiring that a plaintiff prove that his or her name or
likeness possessed a commercial value.17
The Colorado Supreme Court disagreed with this argument,
primarily because of what it viewed as an overly
property-oriented approach of the Restatement. The Court
viewed the plaintiff's claim in this particular case as
not being premised on a misappropriation of the
plaintiff's right of publicity, that is, the right to
exploit one's own celebrity for money. Instead, the Court
found the claim in this case to be an invasion of the right
to privacy in the form of a right "to be let
alone," that is, a personal right involving the
plaintiff's feelings instead of her business interests.18
In recognizing this kind of invasion of privacy based on
appropriation of name or likeness as a personal tort, the
Dickerson Court swept away the Colorado Civil Jury
Instructions' previous requirement that a plaintiff show
that his or her identity possessed a pre-existing commercial
value. Instead, the Court laid out the following elements for
this personal, privacy-based tort:
1. The defendant used the plaintiff's name or likeness.
2. The use of the plaintiff's name or likeness was for
the defendant's own purposes or benefit, commercially or
otherwise.
3. The plaintiff suffered damages.
4. The defendant caused the damages incurred.19
The Dickerson Court's formulation of these elements for
an invasion of privacy based on appropriation creates a tort
that is "extremely broad," based merely on a
defendant's "use" of the plaintiff's name
or likeness.20 Indeed, entirely absent from the prima facie
elements for this privacy-based tort are any of the enhanced
fault requirements, such as actual malice or specific intent,
that normally attach to other causes of action involving
claims based on a defendant's speech.21 Significantly,
there is no limitation under the prima facie elements of this
claim solely to commercial speech. In other words, this tort
applies, on its face, to noncommercial speech, as well as
commercial speech.
Broad "Newsworthiness"
Privilege
Privilege
Having created such a broad prima facie theory of liability
for an invasion of privacy arising from an appropriation of
name or likeness, the Dickerson Court was forced to recognize
a concomitantly broad privilege that protects a newsworthy
use of a plaintiff's name or likeness.22 The Court
described this privilege as one that "permits the use of
a plaintiff's name or likeness when that use is made in
the context of, and reasonably relates to, a publication
concerning a matter that is newsworthy or of legitimate
public concern."23 The Court further held that a
publication is privileged as newsworthy if it is
"primarily noncommercial."24 In so doing, the Court
further held that a publication falls out of the privilege
for primarily noncommercial, newsworthy speech if it
constitutes "commercial speech," which the Court
described as "speech that proposes a commercial
transaction."25 Under these guidelines, the Court
concluded that the newsletter article in Dickerson was
"primarily noncommercial," because it reported on a
matter of legitimate public concern: the investigation and
prosecution of crime, regardless of any profit motive by the
private investigator in publishing the account in the
promotional newsletter.26
The Dickerson Court based this privilege on the First
Amendment's protection of free speech interests,27 in
that dissemination of such information is necessary to keep
the public informed.28 Along the same lines, the Restatement
(Second) of Torts observes that no one should object just
because his or her name or appearance is publicized when it
is not a private matter and it is open to public
observation.29
...
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