RE: Re[2]: Celebrity GIFs

From: Cumbow,Robert-SEA <CUMBR[_at_]perkinscoie.com>
Date: Fri, 20 Sep 96 14:19:00 PDT

Oliver, Derric wrote:
>
> No public figure or celebrity has any right to privacy. This
> right is afforded to private citizens and is simply the right to 'be
> left alone'. Public figures are instead awarded the property right of
> publicity. In this case, Cindy Crawford could bring the cause of
> action misappropriation of name and likeness under the right of
> publicity.

I emphatically differ, on three counts:

First, although a celebrity's right to privacy may be somewhat lower than that of the average citizen, because in many contexts a celebrity has waived her right to privacy, this does not mean that a celebrity has NO right to privacy. Try taking photos of Cindy at home, in a hotel room, or in a public restroom and see.

Second, "public figure" doctrine relates to First Amendment analysis, not to the tort of violation of privacy.

Third, rights of publicity are NOT an alternative to rights of privacy. Everyone, celebrity or not, has BOTH. The right of privacy is a right to be left alone in situations where one has a reasonable expectation of being left alone. The right of publicity is a right to control the COMMERCIAL exploitation of one's name, image, or likeness. You don't have to be a celebrity to have a right of publicity; and, on the other hand, a celebrity's right of publicity would come into play ONLY where the exploitation of her image was commercial in nature.

If I posted an uncomplimentary morphed image of Cindy on the web for the free amusement of others, she would not have a right of publicity action against me. If the image depicted her engaged in an activity that she in fact had not engaged in, she might have a false light action, and maybe defamation if the image was accompanied by words or could otherwise be taken as an untrue assertion about her behavior. If it was not a morphed image but an actual photo of her, that I was not authorized to use, she might have a right of privacy action against me, and the photographer might have a copyright infringement action. But she would have no right of publicity action until/unless I tried to make money off my use of her image.

Bob Cumbow
<cumbr[_at_]perkinscoie.com> Received on Sat Sep 21 1996 - 01:37:51 GMT

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