Principles of Business (BUS101)

1. Principles of Business(BUS101) Donald R. Simon, Esq. Adjunct Professor - Digital Photography Spring, 2009

2. Principles of Business - Class 12 • Lecture: “Right of Privacy.” • Lecture: “Defamation.” • Lecture: “Miscellaneous Legal Issues.” • Lecture: “Obscenity.” • Assignment: no assignment.

3. Principles of Business - Class 12 • Right of Privacy • For the most part, society favors the benefits that photography offers. • This is reflected in legal attitudes that are mostly permissive to act of taking photos. • In cases where photography likely infringes on important societal interests such as national security or protecting children from sexual exploitation, it may be strictly controlled.

4. Principles of Business - Class 12 • Right of Privacy • In most cases, regulation is premised on balancing the right of photogs to document the world against the rights of others to enjoy their privacy and property. • Most photographic experiences do not involve legal risk. • Situations do arise where failing to know one’s legal rights can mean losing an image or incurring liability.

5. Principles of Business - Class 12 • Right of Privacy • Despite the importance that society places on personal privacy, the law imposes relatively few restrictions on photographing people. • Even the most sensitive aspects of people’s lives, including extreme tragedy and embarrassing moments, may be photographed freely. • The above is true unless the subjects have secluded themselves in a place or manner where they can reasonably expect privacy.

6. Principles of Business - Class 12 • Right of Privacy • Much confusion over the right to photograph people comes from failing to distinguish between the legal aspects of taking photos and those of publishing photos. • The laws that protect against unauthorized publication are much broader than those that apply to taking photos.

7. Principles of Business - Class 12 • Right of Privacy • E.g., you would not violate a person’s legal right of privacy by photographing that person walking public view. • But would violate that person’s rights if you used that photo to illustrate an advertisement without that person’s permission.

8. Principles of Business - Class 12 • Right of Privacy • Recognized in the U.S. for only a little over 100 years. • Origin credited to the article “The Right of Privacy,” written by Samuel Warren and Louis Brandeis and published in Harvard Law Review in 1890. • A slight majority of state, including Illinois, recognize all four privacy torts, either by statute or common law.

9. Principles of Business - Class 12 • Right of Privacy • 4 separate torts: • Tort: a wrongful act, other than a breach of contract, for which the law gives the injured party some legal remedy, usually money, against the wrongdoer in civil, not criminal court. • There may be some criminal liability, such as trespass.

10. Principles of Business - Class 12 • Right of Privacy • 4 separate torts: • Commercial appropriation of name or likeness (or simply “Appropriation”) • Public disclosure of embarrassing private facts (or simply “Disclosure”) • Placing an individual in a false light (or simply “False Light”) • Intrusion upon physical seclusion (or simply “Intrusion”)

11. Principles of Business - Class 12 • Right of Privacy • Appropriation: • The use of an individual’s name, likeness, or identity for trade or advertising purposes without consent. • Oldest and best-established form of invasion of privacy. • Individuals should have the sole right to control the exploitation of their persona. • Not necessarily related to celebrities—anyone can control their image. Similar to a property right.

12. Principles of Business - Class 12 • Right of Privacy • Appropriation: • Commercial use: • Exploitation directly for trade or self-enrichment purposes. • Some direct self-serving link between the individual’s identity and the promotion of a product, service, or organization. • Exception is for legitimate news coverage, unless the celebrity depicted is used just to promote that media outlet without any content on that celebrity.

13. Principles of Business - Class 12 • Right of Privacy • Appropriation: • Name or likeness: • Person must be readily identifiable in the commercial use. • Not only includes someone’s image or name, but also nickname, voice, or any other mark of personal identity.

14. Principles of Business - Class 12 • Right of Privacy • Appropriation: • Name or likeness: • It is not considered appropriation to feature in advertising someone who looks or sounds like a particular celebrity, without the celebrity’s consent. • But when the look-alike or sound-alike is used in a manner likely to confuse the public, some courts (mostly in NY and CA) have allowed the celebrity to collect damages.

15. Principles of Business - Class 12 • Right of Privacy • Appropriation: • Consent: • There is a tendency to think that people won’t sue for appropriation unless their images are used in some offensive fashion, or that if they do sue it won’t be a case worth much $$$. • These can be dangerous assumptions, especially when using names and images of celebrities.

16. Principles of Business - Class 12 • Right of Privacy • Appropriation: • Consent: • E.g.,: Los Angeles Magazine carried a feature titled “Grand Illusions” in which it used software to alter still photos of film stars and make it look as though the stars were wearing the latest spring fashions. • Without consent, the magazine published a photo of Dustin Hoffman as he appeared in the Tootsie (1982) dressed in a gown and high heels, but with the fashion alteration.

17. Principles of Business - Class 12 • Right of Privacy • Appropriation: • Consent: • The text read: “Dustin Hoffman isn’t a drag in a butter-colored silk gown by Richard Tyler and Ralph Lauren heels.” • Hoffman sued for appropriation and won a $1.5M. Judgment was eventually reversed, but the case illustrates the potential severity of damages.

18. Principles of Business - Class 12 • Right of Privacy • Appropriation: • Consent: • The best way to protect oneself from being sued for appropriation is to get a model release or execute a photo consent form. • Even if the initial intent is not to use the material in a commercial context, that opportunity may present itself later on. • This is especially true for freelance photos and the publications that use their work.

19. Principles of Business - Class 12 • Right of Privacy • Appropriation: • Consent: • A photo may have first have been taken and published simply because it seemed newsworthy; later an advertiser may offer to buy the photo for use in a campaign. • Having prior consent serves 2 purposes: • Protects against appropriation suits; and • Makes the photo more marketable.

20. Principles of Business - Class 12 • Right of Privacy • Appropriation: • Consent: • On the one hand, it is in the best interest of the media to have releases worded in broad terms to cover future, unforeseen uses. • On the other hand, the individuals being used—especially if they are highly marketable celebrities—will sometimes consent only to clearly specified, restrictive uses.

21. Principles of Business - Class 12 • Right of Privacy • Appropriation: • Consent: • A few points to remember about releases: • State that the model has agreed to be photographed and given permission for the photos to be published. • Photogs should be careful not to impair the ability of the model to comprehend the release form by making it too complex.

22. Principles of Business - Class 12 • Right of Privacy • Appropriation: • Consent: • A few points to remember about releases: • Give consideration for the model’s release. Recall from last week that when consent is given gratuitously, it may be freely withdrawn at any time. • When dealing with people under 18 or persons suffering significant mental disabilities, get written permission from a parent or legal guardian.

23. Principles of Business - Class 12 • Right of Privacy • Appropriation: • Special Problem: Deceased Celebrities • Ongoing debate about whether publicity rights survive death. • Some states recognize someone’s persona as more like a property right, which can be bequeathed to or inherited from after the celebrity’s death.

24. Principles of Business - Class 12 • Right of Privacy • Appropriation: • Special Problem: Deceased Celebrities • State in which celebrity was domiciled at the time of their death controls. • CA: 70 years after death. • NY: law does not grant rights after death. • IL: 50 years after death. • IN: 100 years after death. • WS: law does not grant rights after death.

25. Principles of Business - Class 12 • Right of Privacy • Appropriation: • Pre-use review: • Is the context commercial, such as a product advertisement, endorsement, or promotion? • Is someone identified by name, photo, voice, or otherwise? • Is the person being exploited for commercial gain rather than appearing incidentally? • Was proper consent obtained by release?

26. Principles of Business - Class 12 • Right of Privacy • Disclosure: • Disclosure of non-newsworthy, embarrassing private facts that would be highly offensive to a reasonable person. • Tort is rather narrow and successful lawsuits against the media have been infrequent. • Hinges greatly upon prevailing mores of society, which are, subject to change and interpretation. • With few exceptions, events in public places are fair game.

27. Principles of Business - Class 12 • Right of Privacy • Disclosure: • Sports Illustrated case: • Photog took photos of some Steelers fans who were hamming it up before a game. • SI used a close-up photo of one fan with his fly unzipped. • Fan sued for disclosure of private facts. • Court: photo was embarrassing, but did not disclose anything that was private.

28. Principles of Business - Class 12 • Right of Privacy • Disclosure: • Pre-use review: • Has publicity already been given? • Would the publicity be highly offensive or embarrassing to a reasonable person? • Is the disclosed information of a legitimate public interest?

29. Principles of Business - Class 12 • Right of Privacy • False Light: • Representation of an individual in a false and highly offensive manner before the public. • Similar to defamation--both torts involve the dissemination of false information. • False light compensates for embarrassment or anguish; defamation compensates for damage to reputation. • Of the four privacy torts, false light is the one least adopted by the states.

30. Principles of Business - Class 12 • Right of Privacy • False Light: • In photography, false light can occur when photos are used out of context. • E.g., a news photog take a picture of a young man shopping at a convenience store. • The picture is not used at the time and is filed.

31. Principles of Business - Class 12 • Right of Privacy • False Light: • Six months later, the newspaper is running a piece about shoplifting, so editors dig into the file and publish that photo along with the article, simply for purposes of graphic illustration. • By doing this, the newspaper is begging for legal trouble.

32. Principles of Business - Class 12 • Right of Privacy • False Light: • Pre-use review: • Has the person been placed before the public in a false light? • Would the false portrayal be highly offensive to a reasonable person? • Did the communicator act with negligence or, if the subject is a public person, with reckless disregard for the truth?

33. Principles of Business - Class 12 • Right of Privacy • Intrusion: • Intentional invasion of a person’s physical seclusion or private affairs in a manner that would be highly offensive to a reasonable person. • Can occur during the photo-taking process, not by publication. • Often goes hand in hand with a trespass claim.

34. Principles of Business - Class 12 • Right of Privacy • Intrusion: • Threshold question: is there a reasonable expectation of privacy? • Rule: can usually take a photo of someone in a public place irrespective of whether it concerns something the subject would prefer not to have photographed. • A reasonable expectation of privacy does not exist on public sidewalks, parks, beaches, department stores, or in open dining rooms of restaurants.

35. Principles of Business - Class 12 • Right of Privacy • Intrusion: • A reasonable expectation of privacy is likely to exist in a private residence. • Also has been recognized in other closely controlled places, including hospital rooms, ambulances, hotel rooms, private offices, dressing rooms, and public toilet stalls.

36. Principles of Business - Class 12 • Right of Privacy • Intrusion: • Review: • Is the seclusion intentionally intruded upon, either physically or otherwise? • Would the intrusive conduct be highly offensive to a reasonable person (e.g., by deception)? • Does this person have a reasonable expectation of solitude or seclusion, such as would be found in a private residence?

37. Principles of Business - Class 12 • Right of Privacy • Companion Torts: • Typically, privacy lawsuits involve 2 or more privacy torts as well as other torts such as trespass, fraud, or intentional infliction of emotional distress. • The most prevalent is i.i.e.d. • Outrageous conduct that is calculated to cause, and does actually cause severe mental or emotional distress. • Plaintiff must prove severe emotional distress.

38. Principles of Business - Class 12 • Right of Privacy • Companion Torts: • Hustler v. Falwell case: • Inside front cover of an issue of Hustler magazine featured a parody of an advertisement for Campari liqueur. • Parody was a mock interview with the Rev. Jerry Falwell discussing loosing his virginity to his mother, in an outhouse, while drunk on Campari.

39. Principles of Business - Class 12 • Right of Privacy • Companion Torts: • Hustler v. Falwell case: • Falwell sued for libel, invasion of privacy, and i.i.e.d. • He lost on the first two claims, but was award $200K on the i.i.e.d. claim. • Supreme Court reversed creating an exception for parody and political satire.

40. Principles of Business - Class 12 • Miscellaneous Legal Issues • Defamation:

41. Principles of Business - Class 12 • Miscellaneous Legal Issues • Defamation: • For many centuries, in cultures around the globe, humanity has recognized the importance of an individual’s reputation. • A good reputation may be the fruit of prolonged dedication and hard work. • Yet, a reputation can be shattered literally overnight by the media. • This is why most countries have long had laws against defamation—an attack upon the reputation of another person.

42. Principles of Business - Class 12 • Miscellaneous Legal Issues • Defamation: • A false allegation of fact that is disseminated about a person and that tends to injure that person’s reputation. • Libel: written defamation. • Slander: spoken defamation. • Manipulation of photos has the potential to harm another’s reputation or place them in a false light (privacy).

43. Principles of Business - Class 12 • Miscellaneous Legal Issues • Defamation: • A defamation plaintiff usually must prove all six of the following elements in order to win a case against a mass medium or individual communicator: • Defamatory content: statements that call into question an individual’s honesty, integrity, professional competence, sanity, solvency, morality, or social refinement; • Falsity: statement must be substantially false. Truth is a defense;

44. Principles of Business - Class 12 • Miscellaneous Legal Issues • Defamation: • Publication: statement must be disseminated to a third party who understands the message; • Identification: statement “of and concerning” the plaintiff; • Fault: Is plaintiff a public person or official? Then actual malice (higher) fault standard. If plaintiff is a private person, then negligence (lower) fault standard; and

45. Principles of Business - Class 12 • Miscellaneous Legal Issues • Defamation: • Harm: plaintiff must provide evidence that he or she actually suffered an injured reputation. Plaintiff seeks a monetary award. • The media prevail in about 75% of all the defamation lawsuits filed against them.

46. Principles of Business - Class 12 • Miscellaneous Legal Issues • Access and Seizures:

47. Principles of Business - Class 12 • Miscellaneous Legal Issues • Access and Seizures: • No general legal right of access to private property for the purpose of taking photos, which means that photogs must obey the same laws that apply to the public. • Trespass is not limited to bodily entries—extending a camera over a fence will constitute trespass even if the photog is standing outside the fence line.

48. Principles of Business - Class 12 • Miscellaneous Legal Issues • Access and Seizures: • Photogs who enter property with permission should also be aware that owners are free to place limits on photography. • Photogs are sometimes tempted to misrepresent why they want to enter a property in order to get permission. • Ethical issues aside, falsely representing one’s purpose may invalidate the consent and expose you to liability for trespass.

49. Principles of Business - Class 12 • Miscellaneous Legal Issues • Access and Seizures: • When seeking permission with someone other than the owner, you should establish whether the person with whom you are dealing has authority to allow people access to the property. • Not all employees have the authority to allow you on to the premises. • E.g., cafeteria workers at a nuclear power plant would not be authorized to let visitors enter the control room.

50. Principles of Business - Class 12 • Miscellaneous Legal Issues • Access and Seizures: • There are very few instances where your film, images, or equipment may lawfully be taken from you. • Even if you are caught trespassing, intruding on someone’s privacy, or photographing against someone’s rules, the most the wronged person may lawfully do is expel you from their property and/or sue for any damages they may have suffered.