Chapter 23 - § 23.3 • ELEMENTS DEFINED


§ 23.3.1—Appropriation of Another's Name or Likeness31

The Defendant Used the Plaintiff's Name or Likeness

"Likeness" may include the plaintiff's name or depictions of the plaintiff, including but not limited to photos and videos of the plaintiff.

Unlike other states, Colorado courts do not require a plaintiff to prove that his or her name or likeness had pre-existing commercial value to have a viable claim for misappropriation of name or likeness when seeking only personal damages.32 Personal damages include mental anguish and injured feelings resulting from an appropriation.33 Colorado courts have not decided whether a plaintiff seeking to recover damages to a commercial interest must prove the value of his or her identity, either as an element of the tort or as part of his or her damages.34

For the Defendant's Own Purposes or Benefit, Commercially or Otherwise

Recovery is not available under the theory of invasion of privacy by appropriation of another's name or likeness in cases where a publication used a person's name or image for a noncommercial, newsworthy purpose.35 Whether the use of the plaintiff's identity is primarily commercial or noncommercial is a question of law for the court to decide.36

In Joe Dickerson & Assocs., LLC v. Dittmar,37 the Colorado Supreme Court eliminated the requirement that a plaintiff prove that the defendant sought to take advantage of value attached to a plaintiff's name or likeness. The plaintiff in Dittmar sued under the theory of appropriation when a detective published an article in a newsletter he owned, identifying the plaintiff by name and including her picture, which detailed his investigation of the plaintiff's theft of bearer bonds and her subsequent criminal conviction. The Colorado Supreme Court held that the absence of a pre-existing commercial value to the plaintiff's name or likeness did not destroy her cause of action, because she sought only personal damages.38 In coming to its decision, the supreme court explained that the market value of the plaintiff's identity was unrelated to the question of whether she suffered mental anguish as a result of the alleged wrongful appropriation — a plaintiff whose identity had no commercial value might still experience mental anguish based on an unauthorized use of his or her name and likeness.39

The supreme court abstained from deciding whether a plaintiff seeking to recover damages to a commercial interest must prove the value of his or her identity, either as an element of the tort or as part of his or her proof of damages.40 This question remains open for decision.

Ultimately, however, the supreme court denied the plaintiff's appropriation claim because it determined that the defendant's use of the plaintiff's name and picture was absolutely privileged under the First Amendment of the U.S. Constitution as newsworthy, noncommercial speech.41 The court noted that the defendant's profit motive did not transform his newsletter, a publication regarding a matter of public concern, into commercial speech.42 To be actionable, the use of the plaintiff's identity must be more directly commercial than simply being printed in a periodical that operates for profit.43

Plaintiff Suffered Damage

A plaintiff who seeks only personal damages is not required to prove that his or her identity has commercial value to recover.44 Plaintiffs may recover personal damages for mental anguish and injured feelings resulting from an appropriation.45

To prove economic damage, federal circuit courts applying Colorado law have held that a plaintiff may demonstrate lost opportunities such as marketing and advertising.46 Proof of a specific lost client is not necessary to prove economic damages.47

Defendant Caused the Damages

Colorado law requires that the defendant's use of the plaintiff's name, likeness, or identity be the cause of the plaintiff's injuries, damages, or losses.48

§ 23.3.2—Unreasonable Publicity Given to Another's Private Life (Public Disclosure of Private Facts)

Public Disclosure

The disclosure must be made to the general public or to a large number of persons, and not merely some other person.49 (Such disclosure is distinct from the "publication" required to pursue a claim for defamation; "the term 'publication,' as it is applied in defamation claims, 'is a word of art, which includes any communication by the defendant to a third person.'"50 ) There is no threshold number that constitutes "a large number" of persons. Rather, the facts and circumstances of a particular case must be taken into consideration in determining whether the disclosure was sufficiently public to support a claim for invasion of privacy.51

About the Plaintiff

A public disclosure or statement is "about the plaintiff" if people who see, hear, or read the disclosure or statement would reasonably understand that it refers to the plaintiff.52

Fact(s) Disclosed Must Be Private in Nature

"Private facts are those that relate to the plaintiff's private life and are not already known in the community, contained in a public record, or properly available to the public. Events that take place in public places, information available to the public, or facts that the plaintiff leaves open to the public are not private."53 Thus, facts that are already available in the public domain or events viewable by the public cannot serve as the basis for an invasion of privacy claim.54 Examples of facts already in the public record include marriage decrees, divorce decrees, and an arrest warrant that is part of a court file.55

Conversely, information pertaining to an individual's sexual relations (if not already in the public record) would be considered private and sufficient to support an invasion of privacy claim.56 The same privacy protections apply to "unpleasant or disgraceful" illnesses, which may subject the individual to scrutiny, shame, or embarrassment.57 Health records, which are compiled on the basis of tests and other examinations, generally are considered confidential and private.58

In Robert C. Ozer, P.C. v. Borquez,59 an associate at a law firm brought an action for wrongful discharge and public disclosure of private facts when the president of the law firm revealed to other attorneys at the law firm the plaintiff's sexual orientation and the fact he needed to be tested for the human immunodeficiency virus (HIV) following his partner's being diagnosed with AIDS. The law firm fired the attorney approximately one week after the disclosure.60 The Colorado Supreme Court, in the end, held that the plaintiff's sexual orientation and possible infection with the AIDS virus were private facts that could be the subject of a disclosure action.61 While the ruling serves as an official recognition in Colorado of the tort of unreasonable publicity given to one's private life, the Colorado Supreme Court remanded the case because the district court had incorrectly instructed the jury.62

As the law currently stands, Colorado citizens do not have a right to be forgotten — information that enters the public domain remains public even after the passage of time.63 In Lindemuth v. Jefferson County School District,64 the Colorado Court of Appeals held that the lapse of 14 years since the plaintiff pleaded nolo contendere to charges of child molestation did not make the information private. Notably, the plaintiff's criminal records remained accessible to the public throughout the relevant time period.65

Other categories of information that are not private include information disclosed as part of an arbitration,66 information that will or may be placed in evidence in a subsequent criminal trial,67 and information revealed to the public through media scrutiny.68 A plaintiff's right to privacy can also be outweighed by a legitimate investigation of criminal misconduct69 and tax liability.70

Not of Legitimate Concern to the Public

This factor is not included among the elements contained in Colorado's pattern jury instructions for this invasion of privacy. Presumably, that is because a court would decide it as a matter of law before the claim would reach a jury. In order not to risk chilling or impeding the freedom of press or other First Amendment interests, Colorado courts have carved out an exception for what might otherwise be deemed privacy-invading disclosures, where the disclosure involves a fact or facts of a newsworthy nature, or a matter of legitimate public interest.71 "Newsworthy" disclosures include information disseminated for the purposes of education, amusement, or enlightenment in which the public may reasonably be expected to have an interest.72 Disclosures falling into any of these categories are not actionable and may be subject to a motion to dismiss for failure to state a claim upon which relief may be granted. In contrast, an actionable publication exists "when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake."73

Very Offensive to a Reasonable Person

Colorado's pattern jury instruction defining "very offensive" states:

In determining whether an invasion is very offensive to a reasonable person, you should consider all of the evidence, including the degree of invasion, the circumstances surrounding the intrusion and the manner in which it occurred, the defendant's motives and objectives, the setting in which the intrusion occurs, and the plaintiff's expectations of privacy in that setting.

The right of privacy does not protect people from minor annoyance, indignities, or insults, or the normal, expected contacts with and exposure to life in a modern society.74

Colorado courts have generally used the term "highly offensive" in lieu of the "very offensive" terminology intended for lay jurors. In determining whether a disclosure would be highly offensive, Colorado courts must ask whether the disclosure would cause emotional...

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