Intellectual Property Torts the law about civil infringements that lead to liability

1. Intellectual Property �Torts�(the law about civil infringements that lead to liability) Rights of Publicity Rights of Privacy Defamation

3. Warren and Brandeis, 1890 Samuel D. Warren and future Supreme Court Justice Louis D. Brandeis wrote a Harvard Law Review article in which they argued that the Constitution, though never stating so directly, offers a �right to be left alone.� This and related ideas turned into the �right to privacy,� the �right to retreat from the world� and in those days, the right to escape the excesses of yellow journalism.

4. Common Law Claims(that are then broken out among the three areas) Intrusion upon seclusion Public disclosure of private facts False light in the public eye Appropriation of name/likeness/etc.

5. Intrusion Upon Seclusion Unauthorized intrusion or prying into plaintiff�s seclusion; Intrusion offensive or objectionable to a reasonable person; Matter upon which intrusion occurs must be private; Intrusion causes anguish or suffering.

7. Public Disclosure of Private Fact A liable to B for giving publicity to a matter concerning the private life of B, if the matter publicized is the kind that: Would be highly offensive to a reasonable person, and Is not of legitimate concern to the public

8. The instant message blinked on the computer at Jessica Cutler�s desk in the Russell Senate Office Building. �Oh my God, you�re famous. Your blog is on Wonkette,� the message said. Jessica's blog was the online diary she had been posting anonymously to amuse herself and her closest girlfriends. In it, she detailed the peccadilloes of the men she said were her six current sexual partners, including a married Bush administration official who met her in hotel rooms and gave her envelopes of cash; a senator's staff member who helped hire her, then later bedded her; and another man who liked to spank and be spanked. Jessica was officially fired for misusing an office computer, but the men she wrote about kept their jobs. What they lost was their privacy. Jessica's blog identified them only by their initials. But amateur Internet sleuths who read the blog searched electronic databases looking for likely suspects, then posted names and photographs on the Internet. Jessica still refuses to name the men publicly.

10. Exceptions News, commentary, satire, critique, and some other forms of speech are protected when the information can be interpreted to be within the public�s right to know. News and information of public interest, even when about public figures with a lot at risk, is generally treated as outside the realm of protection under rights of publicity. Images of public buildings Images of people at news events Sometimes (and in some jurisdictions) �parodies� and/or �artistic renderings� of otherwise protected personae.

11. Probably not in the public�s interest: Bubba the love sponge http://www.orbitcast.com/archives/bubba-the-love-sponge-sued-over-sex-segment.html

13. False Light in the Public Eye Publication of false fact to the public; Highly offensive to reasonable person; Causes damage to plaintiff.

14. Lawsuit alleges false lightFired, re-hired employee takes claims to court Months after she was fired and then re-hired in a dispute between her and UT's athletic department, Suzette Fronk is suing the university for placing her in a false light. Fronk, UT assistant athletic director for business affairs, questioned spending patterns in the department and was then, she says, fired for it.

17. Right of Publicity Defined �[T]he inherent right of every human being to control the commercial use of his or her identity.� McCarthy, Right of Publicity, 2nd Ed., 2005, Vol. 1, �1:3 Note that this right adheres regardless of the status of the person. However, since celebrities can usually leverage their personae for value, fussing over this right usually involves famous people.

18. Right of Publicity DefinedPROTECTED ASPECTS OF PERSONA Name Likeness Distinctive Voice Style Role � If synonymous with actor Nicknames �Crazy-Legs Hirsch� �Here�s Johnny Porta-potties� So how far will the courts go in protecting aspects of celebrity personna? Traditionally, name and likeness were protected but we�ve seen an evolution of protection from name and likeness to voice, to style, to character role. In New York you have some certainty because the statute lays out what is protected and everything that might derive protection from the common law is preempted by the New York statute. But in other states the legislation is intended to supplement not supplant the common law. So how far will the common law go? The answer seems to be that virtually anything that serves to identify the celebrity will at least have the potential for protection. Here are some examples why I say that: So how far will the courts go in protecting aspects of celebrity personna? Traditionally, name and likeness were protected but we�ve seen an evolution of protection from name and likeness to voice, to style, to character role. In New York you have some certainty because the statute lays out what is protected and everything that might derive protection from the common law is preempted by the New York statute. But in other states the legislation is intended to supplement not supplant the common law. So how far will the common law go? The answer seems to be that virtually anything that serves to identify the celebrity will at least have the potential for protection. Here are some examples why I say that:

19. Appropriation of Name or Likeness Name or likeness of plaintiff; Appropriated by defendant; For some advantage, usually commercial.

20. By Samuel Maull, Associated Press NEW YORK � 50 Cent has sued Taco Bell, claiming the fast-food restaurant chain is using his name without permission in advertising that asks him to call himself 99 Cent. The rapper says in a federal lawsuit filed Wednesday that the Mexican-themed chain features him in a print ad asking him to change his name to 79 Cent, 89 Cent or 99 Cent. His real name is Curtis Jackson. The rapper's court papers say the ad is part of Taco Bell's "Why Pay More?" campaign, which promotes items for under a dollar, including Cinnamon Twists for 79 cents, Crunchy Tacos for 89 cents and Bean Burritos for 99 cents. The papers say the Irvine, Calif.-based company sent a bogus letter requesting the name change to the news media but not to the rapper. The rapper's lawyer, Peter D. Raymond, said his client didn't learn about the letter or that he was featured in the ad campaign until he saw a news report about it. Raymond said his client is seeking $4 million in damages. Taco Bell Corp. spokesman Rob Poetsch issued a statement saying: "We made a good faith, charitable offer to 50 Cent to change his name to either 79, 89 or 99 Cent for one day by rapping his order at a Taco Bell, and we would have been very pleased to make the $10,000 donation to the charity of his choice."

21. Illinois Right of Publicity Act 765 ILCS 1075/1 Effective as of 1-1-1999 Protects the right to control and to chose whether and how to use one�s individual identity for commercial purposes Requires written consent to use an individual�s identity for commercial purposes Continues for 50 years after death

22. Illinois Right of Publicity Act EXCEPTIONS: Portray, describe or impersonate individual in live performance or other literary or artistic manner; Non-commercial use (news, public affairs, sports broadcast, political campaign); Identifying individual truthfully as author of work or program or performer; Promotional materials for the above-referenced; Professional photographers who display work at their shops (unless otherwise notified of objection).

23. Rights of publicity cases CBC. Distribution and Marketing, Inc. v. MLB Adv. Media, L.P., F.3d (8th Cir. 2007): Saves �fantasy� leagues of all kind (not controlled by the leagues). On June 2, 2008, the US Supreme Court refused to hear MLB�s appeal, thereby maintaining the public domain status of statistics and players� names in the fantasy league context. KNB Enters. v. Matthews, 78 Cal. App. 4th 362 (Cal. Ct. App. 2000). Goes to trial because copyright law does not �trump� rights of publicity law in this case (KNB didn�t have copyrights) AND because KNB probably misused images without rights. Carafano v. Metrosplash.com Inc., 207 F. Supp. 2d 1055 (C.D. Cal. 2002). (1) Content providers like Metrosplash do NOT get ISP safe harbor protection; (2) since Masterson is a celebrity, the defamation standard is higher than for a private citizen (actual malice) Perfect 10, Inc. v. CCBill LLC, 481 F.3d 751 (9th Cir. 2007). ISPs get safe harbor here. Pesina v. Midway Mfg. Co., 948 F. Supp. 40 (N.D. Ill. 1996). Non-celebrities can�t claim ROP violations on the grounds of use of celebrity.

24. Rights of publicity cases Ahn v. Midway Mfg. Co., 965 F. Supp. 1134 (N.D. Ill. 1997). Copyright law does trump here. Midway had acquired the copyright suite of rights. Michaels v. Internet Entm�t Group, Inc., 5 F. Supp. 2d 823 (C.D. Cal. 1998). If you don�t really own my sex tape, you can�t plaster it all over the interwebthingienet. Bosley v. Wildwett.com, 310 F. Supp. 2d 914 (N.D. Ohio 2004). Bosley got the injunction. But only after the tapes and the website were out of Pandora�s box. And beware: There are cases (such as Borat) in which participants sign releases they don�t later want to live with. Stern v. Delphi Internet Servs. Corp., 626 N.Y.S. 2d 694 (1995). If it�s news, it bleeds. Brown v. ACMI Pop, N.E.2d (Ill. App. Ct. Aug. 2, 2007). This case is still hung up in proceedings. The law change did not go through. Big implications for stock photo businesses.

25. Rights of privacy cases Steve Jackson Games v. U.S. Secret Service (1993). Moral of the story: Prepping materials for use in a book can sometimes protect one from search and seizure. State ex rel. Macy v. One Pioneer CD-ROM Changer (1993) and Davis v. Gracey, Unless the amount for print publication is only a little of the potentially illegal rest of the stuff. CompuServe v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio, C2�96�1070, 1997)Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 436 (E.D. Pa.1996). Very important cases allowing ISPs to block spam without violating the privacy rights of the spammers. Smyth v. Pillsbury Corp.,. Shoars v. Epson America, Inc., Flanagan v. Epson America, Inc. Email is NOT protected as private speech.