The Origin of Publicity Right of Privacy Law

• Jurisdiction: Maryland

II. THE ORIGIN OF PUBLICITY RIGHT OF PRIVACY LAW

A. The Rise of "Fake News"

In the United States, a general right of privacy was first articulated as a personal right in The Right of Privacy, authored by attorneys Samuel Warren and Louis Brandeis and published in 1890.²³ Reacting to the explosion of "yellow journalism" at the time, Warren and Brandeis observed that "the press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip ... has become a trade."²⁴ They contended that "for years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons."²⁵ They argued that a common law right of privacy was entitled to recognition because "in every [] case the individual is entitled to decide whether that which is his shall be given to the public."²⁶ A violation of the person's right of privacy, they wrote, should be actionable.

Supporting their arguments, Warren and Brandeis explained that "the common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others,"²⁷ and "[n]o other has the right to publish [a person's] productions in any form, without his consent. This right is wholly independent of the material on which, or the means by which, the thought, sentiment, or emotion is expressed."²⁸ While advocating a broad interpretation of the right of privacy—they argued that each person should have the right to control all aspects of his or her personality²⁹ —they also believed such right was limited because, in contrast to a property right, the right of privacy extinguished upon the person's death.³⁰

The first state court to consider a person's "right to be left alone" was New York, when its highest court considered the case of Abigail Roberson in 1902.³¹ In Roberson, twenty-five thousand cartons of flour printed with Ms. Roberson's photograph were sold throughout the United States and internationally without her consent. She sued for an injunction and monetary damages to compensate her for "nervous shock" suffered as a result of the use of her image to sell flour. The lower court found that Ms. Roberson's claims were based on a right unrecognized under New York law and for which there was no precedent, but nevertheless found that defendant's use of her likeness for commercial purposes constituted an invasion of her privacy right. The appeals court, however, refused to recognize a right of privacy under New York law, which led the New York legislature to enact a statute making it a misdemeanor and a tort to make use of the name, portrait, or picture of any person for advertising purposes or for the purposes of trade without the person's written consent.³²

The leading case in the United States to recognize the legal principles underlying right of privacy law originated from the Georgia Supreme Court in 1905.³³ In Pavesich v. New England Life Insurance Co., 50 S.E. 68 (Ga. 1905), the Georgia court concluded that the publication of one's picture without his consent by another as an advertisement, for the purpose of increasing the profits and gains of the advertiser, is an invasion of the person's right of privacy.³⁴ Over the fifty years following Pavesich, a steady progression of various state statutes and judge-made common laws arose related to right of privacy and publicity.

The 1952 publication of the RESTATEMENT (SECOND) OF TORTS included § 652C, which states "one who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy." In the comments accompanying § 652C, the RESTATEMENT (SECOND) outlined the scope and nature of the right:

The interest protected by the rule stated in [§ 652C] is the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others. Although the protection of his personal feelings against mental distress is an important factor leading to a recognition of the rule, the right created by it is in the nature of a property right, for the exercise of which an exclusive license may be given to a third person, which will entitle the licensee to maintain an action to protect it.

The second comment following § 652C clarified the rule's general applicability (usually advertising) and its reach (not limited to commercial appropriation):

The common form of invasion of privacy under the rule [§ 652C] here stated is the appropriation and use of the plaintiff's name or likeness to advertise the defendant's business or product, or for some similar commercial purpose. Apart from statute, however, the rule stated is not limited to commercial appropriation. it applies also when the defendant makes use of the plaintiff's name or likeness for his own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one. Statutes in some states have, however, limited the liability to commercial uses of the name or likeness.

In his seminal review article entitled Privacy, published in 1960,³⁵ William Prosser found that among the four distinct privacy rights then recognized by state laws and courts, one included the Restatement's general principle that a person's right of privacy is invaded by the appropriation of that person's name and/or likeness.³⁶ "In one form or another," Prosser wrote, the right of privacy in 1960 "was declared to exist by the overwhelming majority of the American courts."³⁷ Prosser's review covered then-current American judge-made laws and state statutes governing the publicity form of the right of privacy, starting with a review of New York's earliest statute that made it a misdemeanor and a tort to make use of the name, portrait, or picture of any person for advertising purposes or for the purposes of trade without the person's written consent. "What has emerged from the [court] decisions" Prosser found, "is not one tort, but a complex of four.distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff...'to be let alone.'"³⁸ One of the four torts may be described, Prosser wrote, as "appropriation, for the defendant's advantage, of the plaintiff's name or likeness."³⁹

After 1960, courts in many states continued to expand publicity right of privacy laws to encompass more than just the right to control one's name and/or likeness. one of the early expansions of privacy and publicity rights was expressed by the U.S. Supreme Court in 1977 in Zacchini v. Scripps,⁴⁰ in which the Court held that the First and Fourteenth Amendments do not immunize a news-reporting organization when it videotapes and broadcasts an actor's public performance without the actor's permission. Under Ohio's right of publicity law, the Court wrote, the broadcast of Hugo Zacchini's entire 15-second "human cannonball" act, for which the public had paid money to observe, posed a substantial threat to the economic value of Zacchini's performance. it was not Zacchini's name or likeness that were found to be appropriated by the news organization, but the commercial role he played as a human cannonball performer.

Two years after Zacchini, the California Supreme Court considered Bela Lugosi's right of publicity case under...