Caught on tape: exposing the unsettled and unpredictable state of the right of publicity.

• Author: Eames, Ann Margaret
• Position: Law overview - Report

1. INTRODUCTION

   The right of publicity is the right to control the commercial exploitation of one's identity. (1) Casting out its net, the right of publicity provides a tool to prevent or stop people from benefiting from the unauthorized use of another's image, likeness, or identity. (2) If unsuccessful in defending the use, the unauthorized user must cease its activity or provide compensation for the right to continue the use. (3)

   The right of publicity does not automatically condemn all use of another's image. (4) Further, various defenses may prevail over a right of publicity infringement claim allowing continued and unscathed use. (5) The parameters of these permissible or defendable uses are at times unclear. (6) As a result, the extent of protection afforded by the right of publicity continues to be debated in case law. (7) The lack of defined parameters potentially allows a party to benefit from the unauthorized use of another's identity while the subject in use remains exploited and uncompensated. (8)

   A claim of right of publicity infringement may be refuted by asserting several arguments including non-celebrity status or fungibility of the plaintiff's image, consent provided for the use, or First Amendment protection. (9) These arguments may succeed in dismissal of a suit in its early stages. (10) While at other times, despite asserting a defense, sufficient issues of material fact remain requiring further scrutiny. (11) The lack of bright line rules renders the right of publicity, in certain situations, an unpredictable and perhaps ineffective tool for protecting against exploitation of one's identity. (12)

   The rising popularity of live or reality television exposes not only those caught on tape, but also the undefined boundaries of the right of publicity when claims of commercial exploitation are dismissed in the early stages of litigation. (13) Examining those gaps, this note applies a right of publicity claim to two Florida District Court cases with similar factual situations. (14) The note explores arguments surrounding the use of videotaped images of women taken in public places, compiled with similar footage of other women and sold in a videocassette and DVD series. (15) As the images of otherwise unknown people prove commercially popular when strategically marketed and targeted to certain groups, the right of publicity may increasingly face situations in which it may prove ill-equipped to protect peoples' rights. (16)

2. GIRLS GONE WILD AND THE RIGHT OF PUBLICITY

   Joseph Francis is the founder of MRA Holdings, LLC (MRA), a video production business. (17) MRA obtains, edits and assembles video footage taken in various public places to create videotapes and DVDs based on different themes. (18) Girls Gone Wild is one such series which depicts young women in various stages of undress in public places. (19) The videos and DVDs are marketed through paid television commercials, infomercials and on a company website. (20) The venture has achieved significant commercial success. (21)

   At the outset, a person willing to expose their body in public with the likelihood of a video camera present in the vicinity seemingly has no expectation of privacy. (22) The right of publicity, however, is a branch of the right of privacy that protects not embarrassment and hurt feelings, but the right to control the commercial exploitation of one's image. (23) When the footage of a woman ends up in one of MRA's videos and also used in its advertisements, the questions become Who can claim commercial exploitation? What constitutes consent to commercial exploitation? and most important and debatable, What is commercial exploitation? (24)

3. EVOLUTION OF THE RIGHT OF PUBLICITY

   1. Origins of the Right to Privacy

      In an 1890 article, Samuel D. Warren and Louis D. Brandeis stated the invasion of the right to privacy was a separate tort, essentially recognizing the right "to be let alone." (25) Courts initially declined to recognize this new tort. (26) In 1902, in Roberson v. Rochester Folding Box Co., the New York Court of Appeals dismissed a suit for invasion of privacy by a woman whose picture was placed on 25,000 posters advertising defendant's flour without her consent. (27) The court declared that no right of privacy existed. (28)

   2. Early Statutory Protection and Common Law Protection of the Right to Privacy

      In response to the public outcry after Roberson, The New York legislature enacted section 51 of the Civil Rights Law providing a cause of action for anyone whose name, portrait or picture is used for advertising purposes or for the purposes of trade without written consent. (29) Three years after Roberson in 1905, in Pavesich v. New England Life Insurance Co., the Supreme Court of Georgia recognized a common law right to privacy where the defendant published plaintiff's name and picture to advertise its insurance services without the plaintiff's consent. (30) Over the years following Pavesich, many courts recognized a common law right of privacy for misappropriation of name or likeness for commercial purposes and some for noncommercial purposes. (31)

   3. Recognition of the "Right of Publicity": Haelan Laboratories and Beyond

      In 1953, an individual's right to protect the publicity value of his photograph was recognized and designated the "right of publicity" by the Second Circuit in Haelan Laboratories v. Topps Chewing Gum, Inc. (32) In this case, the court held that "in addition to and independent of that right of privacy a man has a right in the publicity value of his photograph." (33)

      While the debate continued over the definition and scope of the right to privacy, in 1960 Professor Prosser categorized four distinct kinds of invasion: (1) intrusion upon one's physical solitude or seclusion; (2) public disclosure of private facts; (3) publicity that places someone in a false light in the public's eye; and (4) appropriation of one's name or likeness for another's benefit. (34) The American Law Institute adopted Prosser's formulation in the Restatement (Second) of Torts, [section] 652A (1977).35 Many courts have adopted the Restatement formulation as the common law rule in their jurisdictions. (36)

   4. Modern Development

      "Unlike intrusion, disclosure, or false light, the appropriation branch of Prosser's categories does not require the invasion of something secret or private to the plaintiff nor does it involve falsity." (37) "It consists of the appropriation, for the defendant's benefit, use or advantage, of the plaintiff's name or likeness." (38) This distinction, that the appropriation violates the right to the use of one's name and likeness, marked the decisions of the 1970s as the right of publicity came into its own as distinct from the right of privacy. (39)

      Today, the Restatement of the Law of Unfair Competition includes sections defining and addressing the right of publicity. (40) The Restatement declares it to be illegal to use a person's identity without consent for "purposes of trade." (41) It treats the right of publicity as distinct from the right or privacy because its focus is on the redress for appropriation of the commercial value of identity. (42) It states that the right of publicity exists in us all, both celebrities and noncelebrities. (43) Today, the right of privacy has been recognized in some form in every state, while the right of publicity exists in nearly half of the states in either common law or statutory form. (44)

4. LANE AND GRITZKE VERSUS MRA: EXPOSING THE UNSETTLED AND UNPREDICTABLE STATE OF THE LAW

   1. Lane v. MRA Holdings, LLC

      In Lane v. MRA Holdings, LLC, the plaintiff was a young woman who, while on a public street, was encouraged by a videographer to remove her clothes and expose areas of her body. (45) Some time later, Lane discovered that two minutes of footage taken of her appeared in the video titled Girls Gone Wild- College Girls Exposed. (46) In addition, two to three seconds censored clips of Lane were being used in television commercials to advertise the videos. (47)

      Lane brought suit under Florida's statutory version of the right of publicity, section 540.08.48 Section 540.08 prohibits the unauthorized publication "for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph or other likeness of any natural person without [the] express written or oral consent to such use given by such person." (49) The court interpreted the terms "trade" "commercial" or "advertising purpose" in section 540.08 to mean use of the likeness to "directly promote" a product or service. (50) In deciding as a matter of law that Lane's image was not used to "directly promote" a product or service, the court relied on section 47 of the Restatement (Third) of Unfair Competition. (51) Section 47 states that "the name, likeness, and other indicia of a person's identity are used 'for purposes of trade ... if they are used in advertising the user's goods or services, or are placed on merchandise marketed by the user, or are used in connection with services rendered by the user.'" (52) "However, use 'for the purpose of trade' does not ordinarily include the use of a person's identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising incidental to such uses." (53) Therefore, the "use of another's identity in a novel, play or motion picture is ... not ordinarily an infringement ... [unless] the name or likeness is used solely to attract attention to a work that is not related to the identified person." (54)

      MRA argued its videos are expressive works, like motion pictures, aiming to entertain. (55) The documentaries show real women in actual public places and are entitled to First Amendment protection. (56) The court agreed and found the Girls Gone Wild video to be "irrefutably" an expressive work created solely to entertain. (57) Although Lane's image was used to sell copies of the video, she was not used to promote...