Publicity Right of Privacy Litigation

• Jurisdiction: Maryland

VI. PUBLICITY RIGHT OF PRIVACY LITIGATION

A. Elements of the Cause of Action

In a publicity right of privacy action under Maryland's common law, plaintiff, who must be an individual (i.e., natural person), must plead that his name or likeness has commercial or some other recognized value, and that defendant used the name and/or likeness and was enriched because of such use (i.e., defendant enhanced and furthered his or her business interests or gained some commercial advantage). Plaintiff must establish that the likeness is of him or her where, for example, it may not be readily apparent (i.e., a cartoon or caricature of the plaintiff, a body part, or a partial image, etc., must be identifiable as the plaintiff).¹⁰³

An action for appropriation due to commercial gain of the name and/or "likeness" of well-known buildings, structures, or objects (e.g., the name "Oriole Park at Camden Yards" or an image of the Camden Yards warehouse; the Ft. McHenry shape; the Naval Academy; the oriole Bird; a race car) has so far not been recognizable as a cause of action under Maryland law. Whether Maryland's common law would extend to the name and/or "likeness" of buildings, structures, or objects, or particular features of those things, is uncertain given that an alleged misappropriation must involve an individual's name and/or likeness under the Restatement (Second) of Torts.¹⁰⁴ Where, however, an individual becomes associated with such a building, structure, object, or feature thereof, by virtue of, for example, use by the plaintiff of any of those things, or use of the plaintiff's voice or other aspects of their persona in connection with any of those things, an action for misappropriation could conceivably be brought where any of those things are used for commercial gain by another, even where the plaintiff's name and/or likeness are not recognizable in that commercial use. A motion to dismiss, however, is likely to succeed if the case were filed in Maryland, as only one court has extended the common law to cover such situations.¹⁰⁵ As more personalities add their voice-overs to commercials for hotels, automobiles, or athletic shoes, for example, thus closely associating an aspect of their persona with such things, the common law has expanded to recognize non-corporeal things as being part of an individual's persona, as well as voice-alikes.¹⁰⁶¹⁰⁷

In response to a cause of action for appropriation of name and/or likeness, defendant must plead that the use of the plaintiff's name and/or likeness was proper (i.e., that the use was authorized by plaintiff), and, where applicable, may also contend that the use was merely incidental, or protected speech because it was newsworthy.¹⁰⁸ Defendant may also raise other defenses, which are summarized below after a discussion of the proper forum and venue in which to bring a cause of action.

B. Forum/Venue

Where to initiate a publicity right of privacy action involving the unauthorized use of a person's name and/or likeness is an early and important decision in litigation. of course, the court must have personal jurisdiction over the parties, so the plaintiff who brings an action in Maryland must consider, where necessary, Maryland's long arm statute, general and specific jurisdiction, and constitutional fairness.¹⁰⁹ Maryland's long-arm statute states that a court may exercise personal jurisdiction over a person, who directly or by an agent causes tortious injury in Maryland or outside of Maryland by an act or omission outside Maryland if that person regularly does or solicits business, engages in any other persistent course of conduct in Maryland or derives substantial revenue from goods, food, services, or manufactured products used or consumed in Maryland.¹¹⁰ These simple words, however, have been the subject of much complex litigation.

If the plaintiff alleges ownership by assignment of the person's whose publicity right of privacy is allegedly infringed or misappropriated, the plaintiff may not have standing in courts in states like Maryland that follow the common law tort of invasion of privacy (publicity), where assignment of the personal publicity right of privacy has not explicitly been recognized.¹¹¹ In contrast, plaintiff may have standing in those states that recognize publicity rights as property rights that are assignable. In such instances, plaintiff should consider a forum other than Maryland.¹¹²

Moreover, because Maryland courts have not decided if publicity rights directed to a person's name and/or likeness extinguish upon the person's death (except in the case of deceased soldiers, whose rights do not distinguish), the court may not recognize a third person's cause of action to restrain use of a deceased person's name and/or likeness. other states, as discussed above, allow the heirs and assigns of the person to bring a cause of action up to 100 years (Indiana and oklahoma) after the person's death.

Also, counsel for plaintiff must evaluate evidence establishing personal jurisdiction, and the advantages and disadvantages of proceeding in Maryland's federal district court compared to proceeding in state court, and whether it may make more sense to choose a jurisdiction outside Maryland. If Maryland is chosen as the venue, plaintiff should consider which state's law will apply, since Maryland ordinarily follows the lex loci delicti rule when analyzing choice of law problems in tort cases.¹¹³ If it is undisputed that Maryland was the place of the alleged harm and that the parties intend to rely on the substantive law of Maryland, then Maryland may be the best choice in which to bring the cause of action.

Finally, before filing any complaint, Maryland's general statute of limitations should be considered, which in Maryland is three years from the date of the occurrence of the invasion of plaintiff's publicity right of privacy.¹¹⁴

C. Complaint and Answer

If an invasion of privacy action is brought in Maryland, no statutory construction is necessary to determine what needs to be plead in a complaint, in the answer, or proven at trial. In states with statutes, however, case law should be researched to elucidate the full scope of that state's law, including case law outside the forum of interest. For example, in court decisions outside the Ninth Circuit interpreting (and criticizing) California's law, California's common law right of privacy and statutory publicity laws have been found to cover not just name and/or likeness, but "anything at all that evokes [a] person's identity," even though the statute does not use those exact terms.¹¹⁵

1. Allegation of commercial or other value

In a cause of action involving invasion of privacy for appropriation of a person's name and/or likeness in Maryland, the plaintiff must at least assert that the person's name and/or likeness has some commercial or other value, and to survive a motion to dismiss, the plaintiff must recite facts in support of that assertion. The value may be expressed in terms of a value to the person whose name and/or likeness is alleged to have been appropriated, or, in the case of a copyrighted work in which the person's image appeared, to the copyright holder. In LTVN Holdings, for example, the Court concluded that plaintiffs (publisher of videos and the person who appeared therein) had failed to state an actionable claim for invasion of privacy because plaintiffs had not alleged that the person's appearance in videos conferred any extra value upon plaintiffs:

Although Mr. [Irwin R.] Kramer has appeared on several television programs regarding legal issues, there is no allegation that the defendants posted the videos believing viewers would recognize Mr. Kramer and assume he endorsed [defendant's company]. Instead, based on the plaintiffs' allegations, it appears Mr. Kramer was simply the conduit for the information disseminated in the video. As the plaintiffs have failed to allege that Mr. Kramer's presence in the videos was anything more than incidental, the invasion of privacy claim will be dismissed.¹¹⁶

In addition to asserting some commercial or other value in the person's name and/or likeness, the plaintiff must also allege that the exploitation of the name and/or likeness occurred for the benefit of the defendant (i.e., the defendant made money or furthered his or her business or commercial interests).¹¹⁷ Plaintiff does not have to establish she suffered some loss of actual or potential capital under Maryland law to maintain an action for...