Unauthorized appropriation of an individual's name or likeness - Florida's appellate courts and s. 540.08.

• Author: Sanchez, Robert C.

An individual whose name or likeness is used to promote a product or service without his or her consent may have a cause of action under Florida law for invasion of privacy. The "right of publicity" is intended to assure an individual the right to own, protect, and commercially exploit his or her name, likeness, or persona. This right is part of the common law right of privacy now codified at F.S. [sections] 540.08 (1997).

Common Law invasion of Privacy

Florida courts first recognized the tort of invasion of privacy in the landmark decision of Cason v. Baskin, 20 So. 2d 243 (Fla. 1944).[1] The common law right to privacy was traditionally defined by Florida courts within the four general categories recognized by Dean Prosser: 1) the right to be free from unreasonable intrusion upon one's seclusion; 2) the right to prohibit publicity that unreasonably places one in a false light before the public; 3) the right to be free from unreasonable publicity about one's private life; and 4) the right to prohibit the appropriation of one's name and likenesss.[2]

Although Florida courts accepted the four general categories noted by Prosser, it was not until 1967 that the Florida Legislature expanded the remedies available under the right of appropriation, by enacting [sections] 540.08 (1967). Although [sections] 540.08 now codifies the fourth theory described above, the statute permits a party to proceed under available common law theories as well.[3]

Statutory Right of Publicity

F.S. [sections] 540.08, which has not changed significantly since its enactment,[4] prohibits the publication of an individual's name, photograph, or likeness for any commercial purpose without the individual's express written or oral consent. A person whose likeness is used without consent may bring an action to enjoin the unauthorized use and to recover damages for loss or injury sustained by the publication, including a reasonable royalty, and punitive damages.[5]

The statute contains three specified exceptions. First, it does not apply to "any newspaper, magazine, book, news broadcast or telecast, or other news medium or publication as part of any bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes."[6] Second, the law does not apply "in connection with the resale or other distribution of literary, musical or artistic productions or other articles of merchandise or property" when the person has consented to the initial use.[7] Finally, the statute does not apply to photographs of a person "solely as a member of the public" when the person is not named or otherwise identified with the use of such photograph.[8]

Legitimate Public Interest Exception

Prior to the enactment of [sections] 540.08, Florida courts developed a rich body of case law construing the legitimate public interest exception under common law invasion of privacy claims. Indeed, in Cason v. Baskin, the Florida Supreme Court remarked, "But the right of privacy has its limitations. Society also has its rights. The right of the general public to the dissemination of news and information must be protected and conserved." 20 So. 2d at 251.

In 1955, the Florida Supreme Court ruled "that a television company--as in the case of a newspaper, newsreel or other communication medium--has a qualified privilege to use in its telecast the name or photograph of a person who has become an `actor' in a newsworthy event." Jacova v. Southern Radio & Television Co., 83 So. 2d 34,37 (Fla. 1955) (no common law right of privacy when bystander becomes actor in gambling raid on cigar store); see also Cape Publications, Inc. v. Bridges, 423 So. 2d 426, 428 (Fla. 5th DCA 1982) (publication of newspaper story with a photograph of plaintiff clad in a dish towel after rescue by police from estranged husband did not constitute invasion of privacy); Stafford v. Hayes, 327 So. 2d 871 (Fla. 1st DCA 1976) (no right of privacy claim when individual photographed at hotel bar after state capitol evacuated by bomb threat).

The "legitimate public interest" exception prevented plaintiffs' recovery in Ewing v. A-1 Management, Inc., 481 So. 2d 99 (Fla. 3d DCA 1986). In Ewing, the defendants posted a $250,000 bond for the plaintiffs' son, who was in custody on drug charges.[9] The plaintiffs pledged collateral for the bond and signed an indemnity agreement in favor of the defendants.[10] After the suspect jumped bail, defendants' surety published the plaintiffs' names and addresses, as parents of a "fugitive from justice" on a "wanted" poster.[11] The court affirmed the trial judge's summary judgment for defendants on plaintiffs' invasion of privacy claims, characterizing the "entire matter" a public event under [sections] 540.08(3)(a).[12]

Consent Exception

Under the statute, consent may be provided by the person whose right is at issue, or an individual or entity authorized to license the commercial use of the person's name or likeness, or, if the person is deceased, by the surviving spouse or children.[13] One Florida court has held that individuals who did not consent to the commercial use of their likeness or persona by the defendant nonetheless waived their rights under the statute by contract with the plaintiff. National Football League v. Alley, Inc., 624 F. Supp. 6 (S.D. Fla. 1983).

In Alley, the National Football League (NFL) and the Miami Dolphins Limited (a limited partnership which owned the Miami Dolphins' television rights) sued for an injunction and damages based on defendants' unauthorized interception of NFL football game telecasts which had been "blacked out" in the Miami area.[14] Although the court granted a...