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Reality Bites: The Downfall of New York’s Misappropriation Claim in the World of
Reality Television
BY SAMANTHA FREDRICKSON
Love it or hate, reality television is here to stay. Whether it is an inside look into
the world of crime fighting1, a survival competition on a deserted island2, or a 24hour
look at how seven strangers can live together3, reality television has taken an entire
generation by storm.4 Today, it is one of the most prevalent forms of television on the
networks and audiences keep asking for more.5 Though reality television is entertainment,
and sometimes even fictionalized, its roots in documentary filmmaking cannot be
ignored.6 Reality television is capturing and chronicling the society we live in, just as
documentary films have always done.7 It plays a vital role in commenting and
documenting issues that affect our society.8 Reality television, as an expressive, creative
and socially valuable genre, deserves the same legal protections that have been long been
1
Examples are Family Bonds, Cops, and Dog: The Bounty Hunter.
2
The most clear example is Survivor.
3
The Real World.
4
See ANNETTE HILL, REALITY TV: AUDIENCES AND POPULAR FACTUAL FICTION, 27 (2005).
5
Id.
6
See infra Part II B and accompanying notes.
7
HILL, supra note 4, at 1720. Susan Murray, I Think We Need a New Name for it: The Meeting of
Documentary and Reality TV in REALITY TV: REMAKING TELEVISION CULTURE, at 4143. (2004).
8
Murray, supra note 7, at 4143. See also, Jon Kraszewski, Country Hicks and Urban Cliques, Mediating
Race, Reality and Liberalism on MTV’s The Real World, in REALITY TV: REMAKING TELEVISION CULTURE, at
181 “[M]edia that attempts to document reality actually shapes it, filtering it through a variety of discourses
and unequal fields of social power.”
1
granted to traditional forms of media, entertainment and art.9
But as cameras continue to capture our every moment, more and more lawsuits are
being slapped against television producers. Recently, there has been an influx of lawsuits
involving invasion of privacy by misappropriation, a claim that is meant to protect the
commercial value of one’s persona when an image is appropriated for advertising or trade
purposes.10 Historically, courts have held expressive and newsworthy publications and
broadcasts exempt from misappropriation claims if they are deemed to have a high
enough public interest and if the image’s use is related to the story.11 But in the hardto
define realm of reality television, courts are struggling to apply this real relationship test.
This Note argues that the test that courts use to analyze misappropriation claims should
be abolished. Instead, courts should broadly exempt from the misappropriation claim all
communicative and expressive uses that are not for advertising or trade purposes.
Part II of this Note provides a history of documentary making and the rise of
reality television. Part III discusses New York’s treatment of invasion of privacy by
misappropriation and the downfalls of the real relationship test when applied to cases
involving reality television. Part IV argues that New York courts should abolish the use of
the real relationship test and should instead adopt a broad approach that exempts all
9
New York courts have long recognized an exception to misappropriation claims. See infra Part III.
10
N.Y. Civil Rights Law §§50 and 51; Restatement 2d of Torts 652C.
11
Messenger v. Gruner, 94 N.Y.2d 436 (2000); Howell v. N.Y. Post Co., 81 N.Y.2d 115 (1993); Finger v.
Omni, 77 N.Y.2d 138 (1990); Stephano v. News Group Publications, 64 N.Y.2d 174 (1984); Arrington v.
N.Y. Times, 55 N.Y.2d 433 (1982); Murray v. N.Y. Magazine, 27 N.Y.2d 406 (1971).
2
communicative and expressive uses of an image from misappropriation claims.
II. REALITY TELEVISION’S ROOTS IN DOCUMENTARIES
A. The Early History of Documentary Films
The process of recording “reality” with a camera dates back hundreds of years.
Documentaries emerged in the 19th century as a way for scientists to record their work.12
The earliest documentary was made in 1874 by French astronomer Pierre Jules Cesar
Janssen, who developed an early camera to record images of Venus passing the sun.13 In
1877, Eadweard Muybridge recorded his famous photographs of a horse galloping.14
Other scientists followed in the years that followed, conducting similar experiments to
record movement.15 The role of these early documentaries was vital to the development of
many early scientific discoveries. Muybridge’s photographs of the horse galloping
captured for the first time the anatomical details of how a horse runs.16 His photographs
illustrated that a horse has the ability to be lift all of its legs in the air when galloping.17
At the time, this was a revolutionary discovery and it led to future scientific discoveries.18
12
ERIK BARNOUW, DOCUMENTARY: A HISTORY OF THE NON-FICTION FILM 3 (Rev. Ed. 1983).
13
Id. at 3.
14
Id. at 3. Muybridge placed a series of cameras along a horse track and photographed a horse galloping,
recording every stage of the animal’s gallop.
15
Id. at 4, French psychologist Etienne Jules Marey recorded birds in flight in 1887. Later, his former
assistant, Georges Demeny, recorded the lip movements of deaf people to prove that deaf people could
learn to lip read and speak. Id.
16
GEORGE A. BECKEY, AUTONOMOUS ROBOTS: FROM BIOLOGICAL INSPIRATION TO IMPLEMENTATION AND CONTROL, 304
(MIT Press 2005).
17
Id.
18
Id.
3
Shortly after the beginning of photographic documentary, the movement was
revolutionized with Louis Lumiere’s invention of the “cinematographe,” a camera that
could record action on film.19 Lumiere unveiled his invention in December, 1895, by
showing a short film he created, “Workers Leaving the Lumiere Factory,” at the world’s
first public film screening in Paris.20 By the end of 1897, Lumiere, and his brother
Auguste, had created more than 750 documentary films.21 He had recorded everything
from a baby’s first steps to a gondola scene in Venice to a sack race between employees at
his factory.22
Even in these early days of documentaries, there was discourse about a balance
between privacy and the need to provide information to the public, with the latter usually
outweighing the former. A cinematographe operator in Warsaw, Boleslaw Matuszewski,
published a book in 1898 that foreshadowed the very debate we have today.23 In it, he
wrote of the importance of the documentary to society, and the need to preserve and
record moments in history.24 He also predicted that cameras would often go where they
are unwanted, but that this intrusion was necessary in order to “shut the mouth of the
19
BARNOUW, supra note 12, at 6. RICHARD MERAN BARSAM, NONFICTION FILM: A CRITICAL HISTORY, 19 (1992)
“The significance of the work of Louis and Auguste Lumiere is deeply rooted in both the scientific and
artistic developments of the nineteenth century. Their efforts connect the end of the experimental period
(the experiments and inventions of Muybridge, Edison, Dickson, and others) and the beginnings of the
evolution of the language of cinema.”
20
BARNOUW, supra note 12,at 7. BARSAM, supra note 19, at 21.
21
BARNOUW, supra note 12, at 13.
22
Id. at 13. The films mentioned were titled: “The Baby’s First lesson in Walking,” “A Gondola Scene in
Venice” and “A Sack Race between Employees of Lumiere & Sons Factory, Lyon, respectively.
23
Id. at 26
24
Id. at 27, 29
4
liar.”25 The importance of documentary filmmaking was exemplified by the changing role
of the filmmaker, which was developing to encompass that of a historian, reporter,
scientist, promoter, genre painter and educator.26
In the early 20th century, the role of the documentary as a truthseeking medium
was further established by Russian filmmaker Dziga Vertov. 27 Vertov began making
weekly and monthly “newsreels” in 1918 that depicted Soviet life during World War I. 28
In the following years, Vertov also made lengthier films, which he called manifestos, that
depicted the daytoday life in the Soviet Union.29 Vertov saw himself as a journalist, as a
truthseeker, and as a depicter of daytoday life.30 Vertov proclaimed that his goal was to
depict the reality of life, and he criticized films that used fiction.31
In 1922, the first featurelength documentary film was unveiled, Nanook of the
North by Robert Flaherty.32 Later, John Grierson defined the role of the documentary to
“pass from the plain (or fancy) descriptions of natural material, to arrangements,
25
Id. at 29
26
Id. at 29. “None of these functions can be neatly separated. They never occur separately. The
documentarist is always more than one of these. Yet different occasions, different moments in history, tend
to bring different functions to the fore.”
27
Id.
28
Id. at 52 – 53
29
Id. at 54 – 57.
30
Id. at 54 – 57. “The task of Soviet films, as Vertov saw it, was to document socialist reality.” “The
emphasis… was on action caught on the run, from any revealing vantage. Permissions were never asked.
Staged action was abhorred. Concealed camera positions were used to catch moments in marketplaces,
factories, schools, taverns and streets.”
31
Id. at 54,55
32
BRIAN WINSTON, LIES, DAMN LIES AND DOCUMENTARIES 20 (2000) “This used non-actors performing daily
activities (specially arranged for the camera) to paint a dramatic picture of their lifestyle.” Flaherty created
several other full-length documentaries as well. See also, JACK C. ELLIS, A NEW HISTORY OF DOCUMENTARY
FILM 15 (2005).
5
rearrangements, and creative shapings of it.”33
In the years during and following both World Wars, documentary filmmaking
took on several new forms.34 Documentary films were produced that depicted Franklin
Delanoe Roosevelt’s New Deal legislation, the rise of Hitler’s regime, and America’s
foreign policy in the wars.35 The role of the documentary continued to change and
become more vital to society during the Cold War.36 As the government continued to
publish “blacklists” of writers, filmmakers and artists, many previous documentary
makers were put in jail for their “unAmerican” activities during the war.37 At the same
time, two legendary journalists emerged with stories that would bring down McCarthy –
Edward Murrow and Fred Friendly.38 In 1951, the CBS broadcasters began filming the
television show See It Now, which was produced by the CBS documentary unit.39 See It
Now was a television news series that featured interviews, on scene footage, and instudio
commentary on several controversial political issues of the time.40 It was the first of its
kind.41 The journalistic duo of Friendly and Murrow played an important role in toppling
33
WINSTON, supra note 32, at 21 “Thus, documentary encompassed the use of images of the real world for
the purposes of personal expression.” Id.
34
WINSTON, supra note 32, at 21. See generally, BARNOUW, supra note 12.
35
BARNOUW, supra note 12.
36
Id. at 221.
37
Id. at 221, 222 “The formative years of American television coincided with these purge years, and were
unquestionably shaped by them. ”
38
Id. at 222
39
Id. at 223; JUDITH AND WILLIAM SERRIN, EDS. MUCRACKING: THE JOURNALISM THAT CHANGED AMERICA 122
(2002).
40
CARL JENSEN, STORIES THAT CHANGED AMERICA 135-36 (2000).
41
Id.
6
McCarthyism.42 Five See It Now programs focused on Sen. Joseph McCarthy’s program
to blacklist communists.43 During the same era, another form of documentary television
was created in response to the communism scare. The first “reality television” show,
Candid Camera, took to the airwaves in 1948.44 Although more entertaining then Edward
Murrow’s documentary show, it too educated the public on the effects of McCarthyism.45
The show was created in response to America’s fear of surveillance during
McCarthyism46 and used hidden cameras and microphones to spy on average people while
they pulled pranks on them.47 Although it was entertainment and escapism, Candid
Camera was a social commentary on the effects of McCarthyism and played a role in
educating the public about surveillance. 48 It served as an everyday reminder that the
government was watching, and that Americans could be caught on camera at any
42
BARNOUW, supra note 12, at 225;SERRIN, supra note 39, at 126; JENSEN, supra note 40 at, 135-36 (2000).
“In nearly seven years, See It Now took on some of the most contentious issues of the day including
communism, McCarthyism, nuclear testing, political corruption, and apartheid in South Africa…Murrow
educated tens of millions of Americans about the nation’s most despicable demagogue. Through skillful
editing and narration, he gave McCarthy the rope with which to hang himself.”
43
BERNARD TIMBERG, TELEVISION TALK: A HISTORY OF THE TV TALK SHOW, 2526 (2002). Murrow and his team
established a ‘fresh talk’ news show that brought investigative reporting to a new level with the power and
immediacy of live TV. The live, oncamera introductions and filmed as if live television talk of See It Now
set a standard for broadcast journalists. Id.
44
SU HOLMES AND DEBORAH JERMYN, EDS., UNDERSTANDING REALITY TELEVISION 33-35 (2004) The show began on
the radio as Candid Microphone in 1947 and was developed into a television series the following year. It
was the first show to air on the new ABC network, thus demonstrating that the origins of television are
“historically, psychologically, materially, and ideologically inseparable from the birth of Reality TV.”
45
See generally, Anna McCarthy, Stanley Milgram, Allen Funt, and Me: Postwar Social Science and the
‘First Wave’ of Reality TV, in REALITY TV: REMAKING TELEVISION CULTURE at 20, (2004), stating that “Funt
(the creator of Candid Camera), often hailed as reality TV’s creative ancestor, belongs in the postwar
pantheon of liberalminded, aesthetically ambitious television pioneers such as… Edward Murrow.”
(parentheticals added).
46
Id. at 35. Candid Camera was a “cultural response to and exploitation of a social and political shift.”
47
Id. 35
48
Id. at 35.
7
moment.49 Further, the use of the hidden camera exemplified the value and importance of
documenting and capturing society.50 Allen Funt, Candid Camera’s creator, considered the
show more than entertainment – it was social psychology, art, and social reformation.51
Stylistically, documentaries were also improving and changing during this time. In
the 1950s and 60s, with the advent of smaller and lighter weight cameras, documentaries
began to record more and more.52 One type of documentary, called direct cinema, was
very similar to journalism.53 In direct cinema, the filmmaker was a “fly on the wall,”
observing and recording real people without being seen or offering any direction.54 In
contrast, another type of documentarymaking emerged called Cinema Verite.55 In
Cinema Verite, the filmmaker set up scenes and readily intervened in the filming of
events.56
B. The Rise of Reality Television
Television documentaries began to take on a new form in the following decades.
49
Id. at 35, 36. The show also helped make people feel better, “Candid Camera provided cathartic release
from surveillance-anxiety.” Id.
50
Id. at 21. “The value of the hidden camera’s social record for postwar observers lay in the way it could
supplement liberal projects of reform and advocacy…. The hidden camera could document the world of
institutions, from the judiciary system to the mental hospital.” Id.
51
Id. at 26, stating that Funt believed Candid Camera’s purpose was to educate people about mistakes they
were making by capturing their very human moments. It was “art with a larger, liberalreformist social
purpose.” Id.
52
WINSTON, supra note 32, at 21
53
Id. at 21
54
Id. at 21, 22. Direct Cinema enhanced throughout the 70s, 80s and 90s as well. Direct Cinema pioneer
Ricky Leacock described it as “Let the event be more important than the filming.”
55
Id. at 22
56
Id. at 22; BARNOUW, supra note 12, at 262.
8
In 1973, PBS began airing a documentary series that was revolutionary at the time, An
American Family.57 Today, it is looked back upon and recognized as the first reality
television show.58 The twelve episodes of An American Family were shot in Cinema
Verite style, with a camera placed in the household of a Santa Barbara family, the Loud
family.59 The groundbreaking show followed the family as their son Lance declared his
homosexuality and the parents filed for divorce.60 An American Family played an
important role in depicting, and even shaping, society.61 Just as early documentary films
played an important role in educating society, so did An American Family.
An American Family represented a shift in the way documentaries were presented.
It was shot in the observational documentary style of cinema verite, but contained
dramatic, almost soapopera like storylines. People in the industry debated over what to
call An American Family, recognizing that it fell somewhere in between traditional
documentaries and entertainment.62 Today, it is referred to simultaneously as an
57
HILL, supra note 4.
58
Id. at 20. Documentaries such as An American Family . . . are antecedents to docu-soaps such as The
Real World. “There are even traces of observational documentary in reality gameshows such as Big
Brother.” Laurie Ouellette and Susan Murray, Introduction, in REALITY TV: REMAKING TELEVISION CULTURE, at
3, (2004).
59
Whitney Matheson, TV’s First Reality Show Teaches Loud Lesson, USA TODAY, January 8, 2003.
60
Id. The show was unlike anything that had been on television before, and has been hailed as
groundbreaking in the years that followed. Says one USA Today reporter “An American Family showed me
that reality television, as despicable as it may seem now, can serve a meaningful purpose when it's used to
uncover truth.” Id.
61
PBS, Lance Loud, A Death in an American Family, available at http://www.pbs.org/lanceloud/american/
62
Susan Murray, “I Think We Need a New Name for It” The Meeting of Documentary and Reality TV, in
REALITY TV: REMAKING TELEVISION CULTURE at 41 (2004).
9
observational documentary and the first reality television show.63 An American Family
exemplifies the connection between documentaries and reality television.
In the years that followed An American Family, more and more reality television
shows began airing on television. In the 1980s and 90s, reality television grew in the
crime and law genre with the television shows Cops and Court TV.64 The media’s role in
crime television was helped people understand “the cultural context within which the
criminal justice systems operates.”65 Cops documented the police officers’ role and Court
TV documented the courts’ role. Court TV’s everchanging style exemplifies that
merging of documentary and entertainment can still provide social value.66 While Court
TV started out by putting cameras in courtrooms and documenting trials, it eventually
grew into showing recreations and docudramas as well.67 Court TV producers wanted to
educate people about the justice system, but realized that no one wanted to watch
videotapes of long and procedural trials.68 In the 1990s, the Real World took an entire
generation by storm.69 The MTV series took regular people, most in their late teens and
63
Id.
64
Elayne Rapping, Aliens, Nomads, Mad Dogs, and Road Warriors: The Changing Face of Criminal
Violence on TV, in REALITY TV: REMAKING TELEVISION CULTURE at 219-23 (describing Cops). See generally,
ANITA BIRESSI & HEATHER NUNN , REALITY TV: REALISM AND REVELATION at 35 (2005), at 120-21, (discussing the
rise of reality crime TV, especially in Great Britain).
65
Rapping, supra note 64, at 215.
66
Chuck Kleinhans and Rick Morris, Court TV The Evolution of a Reality Format, in REALITY TV:
REMAKING TELEVISION CULTURE at 157.
67
Id.
68
Id.
69
Oulette and Murray, supra note 58, at 3 (describing Real World on MTV as a show that came to define
reality tv’s current form.). Jon Kraszewski, Country Hicks and Urban Cliques, Mediating Race, Reality and
Liberalism on MTV’s The Real World, in REALITY TV: REMAKING TELEVISION CULTURE at 179 (describing The
10
early 20s, placed them together in a house, and kept a camera on them 24 hours a day to
see how they interacted.70 It was revolutionary at the time and became very popular
among youth audiences.
The real growth of reality television has occurred in this decade. And as it has
grown, subgenres have stemmed out of it. Competitive reality shows like Survivor, Fear
Factor, the Biggest Loser, the Apprentice, and the Amazing Race are one category,
referred to in the industry as gamedocs.71 There is a subgenre of dating reality television
shows like the Bachelor and the Bachelorette; and talent shows like American Idol and
America’s Got Talent.72 And there is a subgenre of documentary reality television shows,
referred to as “infotainment” by many in the industries.73 Shows such as Trauma: Life in
the ER, Animal ER, Dog the Bounty Hunter, Family Bonds fall into this category.
The diversity in reality television programming today exemplifies the broadness of
the term.74 Not all reality television has the same qualities as documentary television and
films.75 But, the subgenre of “infotainment” is closely connected to the documentary
Real World’s role in combating, discussing and attempting to eradicate racism).
70
Kraszewski, supra note 69.
71
HILL, supra note 4, at31-39.
72
Id.
73
Id. at 55-56.
74
Id. at 19 “Even the category of documentary can be related to the category of reality TV as both
categories defy simple definitions. Just as reality TV is a broad category that is difficult to define, the
category of documentary also escapes any tight generic specification and what we understand by
documentary is always dependent on the broader context of the kinds of audiovisual documentation
currently in circulation.” (citations omitted).
75
See id. at 15-24. (Describing reality television as stemming from three different categories – tabloid
journalism, popular entertainment, and documentary television. Television shows such as America’s Most
Wanted and Big Brother stem from tabloid journalism. Shows like Who Wants to be a Millionare? And
Jerry Springer stem from popular entertainment. And shows such as the Real World, Cops and Survivor
11
tradition.76 It is the shows that fall in this category that have largely replaced the
traditional documentary.77 Today, scholars and industry leaders have recognized that
reality television not only stems from the documentary,78 but is also replacing it.79 Reality
television emerged as a response to the decline of documentaries80 and the genre as a
whole is often referred to as a “postdocumentary” medium.81 Producers are still making
commentaries on society and documenting topics that are important to the public interest,
but they are packaging it in a way that makes it more appealing among the numerous
choices audiences have. Thus, the growth in reality television stems from this need to
make information more entertaining. People will not watch boring documentaries, but
they will watch “infotainment.”
12
Just as documentaries played a vital role in capturing and commentating on
society, “infotainment” shows do the same.82 Trauma: Life in the ER allows viewers to see
behind the scenes in a hospital.83 In today’s world of impersonal medical visits, most
patients are never able to understand the role and duty of doctors. Trauma has opened up
a window for people to learn about the medical profession and how it affects them. The
influx of crime and legal “infotainment” on the airwaves plays a similar role. Of the
reality television shows on the air, many of them focus on crime and law. These types of
shows in particular, the shows that focus on police apprehension, victims and the presence
of crime, touch people’s lives more than other types of reality television.84 Not only are
these shows educating people about the criminal and legal systems, but they are causing
people to reflect upon their own safety in the world. 85
III. RECENT LAWSUITS AGAINST REALITY TELEVISION ARE PROBLEMATIC
Along with the rise of reality television has been the rise of lawsuits filed against
the producers of several reality television shows.86 In particular, many reality television
shows are being hit with lawsuits alleging commercial misappropriation, a claim that
82
BIRESSI & NUNN, supra note 64, at 35 (2005) “What these documentary styles share is a political concern,
differently informed by socio-cultural context, to depict the lives of ‘ordinary’ people.
83
Trauma: Life in the ER, official TLC web site, available at
http://tlc.discovery.com/fansites/trauma/trauma.html.
84
BIRESSI & NUNN, supra note 64, at 121.
85
Id.
86
See generally, Joel Michael Ugolini, So You Want to Create the Next Survivor? What Legal Issues
Networks Should Consider Before Producing a Reality Television Program? 4 VIRGINIA SPORTS & ENT. L. J.
68 (2004) (describing the myriad of legal issues facing reality television producers).
13
historically has been used to prohibit the unauthorized use of a person’s image in an
advertisement or trade publication or broadcast.87 The mode of analysis, called the real
relationship test, that New York courts use to analyze commercial misappropriation
claims, is problematic when applied in the reality television context. The test carves out a
First Amendment exception for the use of images in some broadcasts and publications
that have public interest value, but it does not provide a consistent standard for when that
exception should apply. The test was meant to protect the media from these lawsuits, but
in the world of reality television it has done more harm than good. As the recent case,
Nieves v. HBO, exemplifies, the real relationship test does not serve its intended purpose
of exempting noncommercial uses of images from misappropriation claims and thus
should be replaced.88
A. Invasion of privacy as a legal claim
The desire of people to protect their privacy rights is as old as the common law
itself,89 but its existence as a legal claim was not recognized until the turn of the 20th
century.90 Louis Brandeis and Samuel Warren were the first to proclaim that the law
should recognize and protect an individual’s right of privacy.91 In their famous law review
87
See e.g. Nieves v. HBO, 817 N.Y.S.2d 227 (1st Dep’t 2006).
88
Id.
89
Louis Brandeis and Samuel Warren, The Right to Privacy, 4 HARV. L. REV. 193,193(1890).
90
Id.
91
Id. See also Michael L. Closen and Robert J. Dzielak, The History and Influence of the Law Review
Institution, 30 AKRON L. REV. 15, 29 (1996) (describing the influence that Brandeis’ and Warren’s article
had on the judiciary in adopting a common law right to privacy claim.).
14
article, Warren and Brandeis urged the adoption of a new claim in tort – the right of
privacy, which they also coined “the right to be let alone.”92 A claim of privacy would
protect an individual from an overintruding and gossiping press, they urged.93 However,
despite Warren and Brandeis’ concern about the press printing private information, they
also explicitly recognized that “the right of privacy does not prohibit any publication of
matter of which is of public or general interest.”94 This balance between privacy and the
public interest, they recognized, would often be difficult to strike.95
Warren and Brandeis’s call for the law to recognize a right of privacy developed
into four branches of privacy claims96 that exist today either in statutory form or under the
common law, depending on the state.97 Invasion of privacy by misappropriation is one of
those claims. In New York, which recognizes invasion of privacy by misappropriation
under a statute, the claim is defined as:
“A person, firm or corporation that uses for advertising
purposes, or for the purposes of trade, the name, portrait or
92
Warren and Brandeis, supra note 78, at 195.
93
Id. at 196.
94
Id. at 214.
95
Id. Any rule of liability adopted must have in it an elasticity which shall take account of the varying
circumstances of each case, -- a necessity which unfortunately renders such a doctrine not only more
difficult of application, but also to a certain extent uncertain in its operation and easily rendered abortive.
Besides, it is only the more flagrant breaches of decency and propriety that could in practice be reached,
and it is not perhaps desirable even to attempt to repress everything which the nicest taste and keenest sense
of the respect due to private life would condemn. Id. at 215-16.
96
The privacy claims are invasion of privacy by misappropriation, invasion of privacy by false light,
invasion of privacy by intrusion and invasion of privacy by public disclosure of private facts. Restatement
2d of Torts. §652B, 652C, 652D, 652E. Dean Prosser recognized these four branches of privacy in an
influential law review article. William Prosser, Privacy, 48 CALIF. L. REV. 383 (1960).
97
In New York, there is no common law right of privacy. However, misappropriation is a statutory claim
under N.Y. Civil Rights Law §§50 and 51.
15
picture of any living person without having first obtained
the written consent of such person, or if a minor of his or
her parent or guardian, is guilty of a misdemeanor.”98
When New York adopted N.Y. Civil Rights Law §50 in 1909, the legislature made it clear
that the statute was only to apply when images were used for advertising or commercial
reasons, and not for newsworthy purposes.99 Later, §51 was enacted to allow a plaintiff to
seek injunctive and economic relief for the use of her appropriated image.100 Other states
recognize a similar claim of misappropriation under the common law.101 Regardless of
whether the claim lies under the common law or by statute, courts have recognized that
the essential elements of a misappropriation claim are the use of a plaintiff’s image, name
or likeness for an advertising or trade purpose.102
As claims for invasion of privacy by misappropriation have made their way
through New York courts, Warren and Brandeis’ recognized need for a balance between
98
N.Y. Civil Rights Law §50 (Consol. 2006). Additionally, §51 allows the plaintiff to recover damages for
violations of §50. N.Y. Civil Rights Law §51 (Consol. 2006). A common law claim for misappropriation is
stated in the Restatement 2d of Torts: “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.” Restatement 2d of Torts, §652C
99
N.Y. Civil Rights Law §50 was enacted in response to Roberson v. Rochester Box Folding Co. In
Roberson, a flour company used a picture of the plaintiff on a poster advertising its flour. About 25,000
copies of those posters were hung in warehouses, stores, and other public places, without the plaintiff’s
consent for use of her image. In the 1902 decision, the court acknowledged the need for the legislature to
adopt a law that would prohibit the publication of images for a company’s “own selfish purpose to use the
picture or the name of another for advertising purposes without his consent.” Roberson v. Rochester
Folding Box Co., 171 N.Y. 538 (1902). New York courts have later recognized that §50 was meant to apply
only to situations similar to that in Roberson. See Arrington v. N.Y.Times, 55 N.Y.2d 433, 439-40 (1982).
100
N.Y. Civil Rights Law §51.
101
Restatement 2d of Torts. §652C.
102
DON PEMBER, PRIVACY AND THE PRESS: THE LAW, THE MASS MEDIA, AND THE FIRST AMENDMENT (1972). There
are slight differences between the statutory and common law misappropriation claims. The statutes
historically were more lenient for the press, as they defined advertising or trade purposes more narrowly.
Publication of ‘truthful’ information was generally found to negate a claim for misappropriation.
16
privacy and the press developed into a defense for the publication of newsworthy
information.103 Early on, courts held that claims for misappropriation under §§50 and 51
were only cognizable if an image was used in an advertisement or for trade purposes, and
not when the image was used for a newsworthy or public interest purpose.104 As one early
case held: “Unless the name or photograph appears in, or as part of, an advertisement, no
violation of the statute arises in this respect.”105 The statute was solely intended to allow
people to seek redress and monetary damages when their images were used without their
consent in order to make a profit.106 The statute was never meant to create an invasion of
privacy claim against the press.107 Early on, New York courts began addressing claims
under §§50 and 51 in two prongs. First, it was determined whether the image was used for
103
See generally, Lahiri v. Daily Mirror, 295 N.Y.S. 382 (N.Y. Sup. Ct.1937); Oma v. Hillman Periodicals,
281 A.D. 240 (Sup. Ct. App Div. 1953) (both cases holding that §§50 and 51 did not apply to publications
of photographs for a newsworthy purpose.
104
See e.g., Lahiri, supra note 103; Oma, supra note 103; Dallesandro v. Henry Holt and Company Inc., 166
N.Y.S.2d 805 (1957). These are some of the earlier cases holding newsworthy uses of images to be outside
the scope of the statute. See also, Craig L. LaMay, Privacy, Property, and Advertisements in Disguise: The
First Amendment and the Right of Publicity, in JOURNALISM AND THE DEBATE OVER PRIVACY 135 (Craig LaMay
ed., 2003) (“In general, misappropriation has been a concern of advertisers; journalists, although they make
nonconsensual use of names and likenesses for a commercial purpose – trade in news – have nonetheless
been granted broad exemption from liability under the tort because their use is not thought to be
exploitive.”).
105
Lahiri, supra note 103 at 382.
106
Messenger v. Gruner, 94 N.Y.2d 436, 441 (2000) “[R]ecognizing the Legislature's pointed objective in
enacting sections 50 and 51, we have underscored that the statute is to be narrowly construed and "strictly
limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person."
See also, Lahiri, supra note 103. The statute embodied a legal recognition limited in scope to be sure, but
a clearly expressed recognition nevertheless of the right of a person to be let alone, a right directed
"against the commercial exploitation of one's personality."
107
Arrington, 55 N.Y.2d at 439 “Put another way, the Legislature confined its measured departure from
existing case law to circumstances akin to those presented in Roberson. In no other respect did it undertake
to roll back the courtpronounced refusal to countenance an action for invasion of privacy.” Additionally,
New York has never recognized a common law claim of privacy and §§50 and 51 were not meant to create a
cause of action that the state does not recognize. Id.
17
advertising purposes, which was defined as whether the image was used “for the
solicitation for patronage of a particular service or product.”108 Second, the courts asked if
an image was used for purposes of trade.109 The trade prong of the statute was meant to
protect the commercialization of a person’s image.110 An image was used for trade
purposes if it was published or broadcast in order to make a profit, and the person was not
compensated for that use.111 Publications that were newsworthy or matters of public
interest were not for trade purposes and thus were outside the statute’s reach.112
The advertising prong of §50 did not cause the media many problems. It was
generally accepted that news broadcasts, documentaries, newspapers and the like were not
“solicitations for patronage.”113 The question became when news could be considered
trade under the statute. Courts recognized that there could be a trade in news, and
struggled to identify when a newsworthy publication or broadcast could be held liable
under the statute.
In order to answer this question, and to both uphold the statute’s purpose and
preserve the First Amendment principles of a free press, New York courts developed a
108
Pagan v. New York Herald Tribune, 32 A.D.2d 341 (1969), aff’d by 26 N.Y.2d 941 (NY Court of
Appeals, 1970); Lerman v. Flynt Distributing Co. Inc., 745 F.2d 123, 130 (S.D.N.Y. 1984) (citations
omitted).
109
Lerman, supra note 108, at 131 (citations omitted). Gautier v. ProFootball Inc., 304 N.Y. 354 (1952).
110
Gautier, supra note 109, at 359. “It has long been recognized that the use of name or picture in a
newspaper, magazine, or newsreel, in connection with an item of news or one that is newsworthy, is not a
use for purposes of trade within the meaning of the Civil Rights Law.” Id. (citations omitted).
111
Id.
112
Id.
113
Id.
18
balancing test to determine when an image was used for trade purposes and could be
prohibited by the statute. 114 First, courts analyzed whether the publication or broadcast
was newsworthy or if it was an advertisement in disguise.115 If it was newsworthy, courts
then applied the real relationship test, 116 which asked whether the plaintiff’s image bore a
real relationship to the article or broadcast.117 If it was found that the image was related to
the news story, the court held that it did not fall within the statute’s prohibition and
dismissed the claim in favor of the media.118 If there was no relationship between the
image and the news story, then courts held that the image was used for trade, not
newsworthy, purposes and could be prohibited by the statute.119
Though the intentions of the real relationship test were favorable to the media, it
was confusing to apply. The test invoked circular reasoning—in order to get the benefit of
the real relationship test, a story had to be considered “news,” but in order to satisfy the
definition of “news,” an image had to be related to the story. Thus, courts often spent
114
See e.g., Lahiri, 295 N.Y.S. 382. This was one of the earliest New York cases to recognize the real
relationship test.
115
Id.
116
Id. See also, Thomson v. Close-up 277 App. Div. 848; Gautier, supra note 109; Dallasandro, 166
N.Y.S.2d 805. Early New York courts also used a test of “substantial fictionalization,” however that test
was struck down in Messenger v. Gruner, 94 N.Y.2d 436 (2000). Additionally, some courts used an
“incidental use” test, which held that if an image’s use was merely incidental to a broadcast than it could
not be misappropriation. See Preston v. Martin Bregman Productions, Inc. 765 F.Supp. 116 (1991). Further
discussion of these other tests is beyond the scope of this Note.
117
Lahiri, 295 N.Y.S. 382. Courts also asked if the image was an “advertisement in disguise.”
118
Lahiri, 295 N.Y.S. 382 (holding that a newspaper’s use of a professional photograph of a Hindu musician
was outside the scope of the statute, and was not for purposes of trade).
119
See e.g. Gautier, 304 N.Y. 354 (holding that am image of a performer at a football game was used for
trade purposes); Blumenthal v. Picture Classics, 235 App. Div. 570, affd. 261 N.Y. 504 (holding that an
image used in a motion picture street scene was for trade purposes).
19
most of the analysis determining if a story was truly newsworthy.120 This often involved a
value judgment.121 Overtime, a broad definition of “news” developed to encompass
anything that had public interest value.122 Courts recognized that the newsworthy
exception applied to documentaries123 and to entertainment.124 Other exceptions, such as
when images were used for artistic purposes, developed as well.125 Additionally, courts
recognized that a news organization’s profit motive could not negate the newsworthy
exception.126
When a court got to the test of determining a real relationship, the analysis was
applied haphazardly and on a casebycase basis. A standard for how to determine
whether an image bore a relationship to a story was never established. Instead, there were
several ways that courts defined a relationship. Many courts held that a relationship was
120
Creel v. Crown Publishers, 496 N.Y. S.2d 219 (1st Dept. 1985) In holding that a guidebook to nude
beaches was a matter of public interest the court focused on why the guidebook was considered important
to the public’s interest.
121
See generally Clay Calvert, Revisiting the Voyeurism Value in the First Amendment: From the Sexually
Sordid to the Details of Death 27 Seattle Univ. L. R. 721, 745. “[N]ewsworthiness is "difficult to define
because it may be used as either a descriptive or a normative term." There thus is "considerable variation in
judicial descriptions of the newsworthiness concept." (citations omitted).
122
Lahiri, 295 N.Y.S. 382. News can include: “among others, travel stories, stories of distant places, tales
of historic personages and events, the reproduction of items of past news, and surveys of social conditions.”
Id. at 389.
123
Ward v. Klein, 809 N.Y.S.2d 828 [find pin cite] (N.Y. Sup. Ct. 2005). “It is well-settled that editorial
uses of photographs in documentaries or ‘publications concerned with newsworthy events or matters of
public interest’ simply do not fall within the statute’s prohibition.” See also, Colon v. City of Rochester, 762
N.Y.S.2d 749 (4th Dep’t 2003); Delan v. CBS, 458 N.Y.S.2d 608 (2nd Dep’t 1983).
124
Lahiri, 295 N.Y.S. 382.
125
Nussenzweig v. DiCorcia, 814 N.Y.S.2d 891, aff’d on other grounds, 832 N.Y.S.2d 510 (2007)
(dismissing a §§50 and 51 claim against a photographer who took an image of a Hasidic Jewish man while
he was on a public street, and displayed the photograph at art galleries for profit. The court held that an
artistic use of an image is exempt from the statute and is not for purposes of trade.).
126
Stephano v. News Group Publications, 64 N.Y.2d 174 (1984). Nussenzweig, supra note 125.
20
established by an editor’s decision to use an image.127 Other courts held that there was no
relationship if an image was used for the purpose of selling a magazine or newspaper,
such as if it was printed in promotional material.128 And yet some courts simply dismissed
cases because the matter was newsworthy, without determining the extent of the
relationship.129 Regardless of the supposed standard for determining a relationship, the
higher the public importance of a piece, the more likely a court was to dismiss it.
Early courts dismissed many cases against the media by using the real relationship
test. When a black man’s picture was used on the cover of New York Times magazine to
illustrate an article about the black middle class, the court dismissed a misappropriation
claim because the man’s image, though he was not featured in the article nor had any
knowledge of the subject matter, was still illustrative of the point the story was making,
thus it bore a relationship.130 When a man celebrating an Irish parade was captured on
camera and his picture was used to illustrate a later story about Irish in America, the court
found that a relationship had been established because he was celebrating something
related to the story’s topic.131 When a picture of a teen model was used to illustrate a love
127
Messenger v. Gruner, 94 N.Y.2d 436 (2000); Howell v. N.Y. Post Co., 81 N.Y.2d 115 (1993); Finger v.
Omni, 77 N.Y.2d 138 (1990); Stephano v. News Group Publications, 64 N.Y.2d 174 (1984); Arrington v.
N.Y. Times, 55 N.Y.2d 433 (1982); Murray v. N.Y. Magazine, 27 N.Y.2d 406 (1971).
128
Thompson v. Closeup, 99 N.Y.S.2d 864 (Sup. Ct. N.Y. 1950); Blumenthal, 235 App. Div. 570, affd.
261 N.Y. 504, Gautier, 304 N.Y. 354.
129
Creel, 496 N.Y. S.2d 219.
130
Arrington v. N.Y. Times, 55 N.Y.2d 433, 441 (1982). Courts should not take on the “dangerous task of
passing on value judgments based on the subjective happenstance of whether there is agreement with views
expressed.”
131
Murray v. New York Magazine 27 N.Y.2d 406 (1971).
21
advice column in YM Magazine titled “I got trashed and had sex with three guys,” the
New York Court of Appeals, on remand from the Second Circuit, held that a relationship
between the model’s image and the column was formed by the editor’s decision to use it
to illustrate the article.132
B. Invasion of privacy by misappropriation against reality television shows
Though these cases were good for the media, they did not set forth any standards
for how to apply the real relationship test in the future. By holding that a relationship was
formed when an editor or producer chose to use an image, the only standard that these
cases set forth is that a relationship can always be found if a publication or broadcast can
be deemed to have a high enough public interest. But, like it or not, media has grown to
encompass many genres that don’t fit categorically into the high public interest
definition.133 Much reality television arguably can’t compare with the high standards of
the New York Times. But, reality television still has a communicative and expressive
purpose that is separate from a trade purpose. It is still expressive, and not commercial,
speech. A test that forces courts to question social value and public importance does not
work in today’s changing media environment.
The real relationship test has become more problematic when applied in lawsuits
involving reality television, where the lines between entertainment and public interest are
132
Messenger v. Gruner, 94 N.Y.2d 436 (2000).
133
See generally, HILL supra note 4.
22
more blurred. The case of Nieves v. HBO represents the downfall of the real relationship
test, and illustrates why it is a problem to apply in today’s changing media environment.
In that case, a woman sued the producers of “Family Bonds,” a documentary reality
television series that chronicles a Long Island family of bounty hunters, the
Evangelistas.134 Cameras routinely followed the Evangelista clan.135 The plaintiff, Chanti
Nieves, was standing on the corner of 106th and Broadway in Manhattan as the HBO
cameras captured the life of the Evangelistas as they sat in a parked van at the
intersection.136 While the HBO cameras surveyed the scene from inside the van, Nieves
image was captured in the documentary for a brief moment. During that time, two of the
Evangelistas and another bail bondsman offered a brief, albeit derogatory, commentary
about Nieves' attractiveness.137 When the show aired on HBO, Nieves image, and the
Evangelistas’ comments, were on screen for nine seconds.138 Nieves sued for invasion of
privacy by misappropriation under New York Civil Rights Law §50 and 51.139 The
134
See Family Bonds, official site at www.hbo.com/familybonds/
135
Id.
136
Verified Complaint at 3, Nieves v. HBO, 817 N.Y.S.2d 227 (1st Dep’t 2006) (No. 100966-05).
137
Memorandum of Law in Support of Defendant’s Motion to Dismiss at 4, Nieves v. HBO, 817 N.Y.S.2d
227 (1st Dep’t 2006) (No. 100966-05), (citing Family Bonds: The Graduate (HBO television broadcast
2004). The cameras recorded the following banter:
“ Father: Holy shit, now this is fuckin’ crankin’…”
Colleague: God!”
Father: I know…just a couple of hours.”
Son: I think my dick just got hard.”
Father: “Oh my God.”
Colleague: “Come on, you’re hard from that?”
Son: “That’s why I just said it’s just partially hard.”
138
Id.
139
Nieves v. HBO, No. 100966-05, slip op. at 2 (Sup. Ct. N.Y. County Jan. 10, 2006).
23
Supreme Court of New York, New York County, denied HBO’s motion to dismiss, and
refused to grant an exception for newsworthiness.140 The court recognized that “Family
Bonds” was a documentary, but found that no real relationship existed between the use of
Nieves’ image and the purpose of the television show.141 The court held that “the only
relationship between the use of plaintiff’s image and the television show is that plaintiff
was standing on a New York street corner while defendants were filming.”142
Factually, the situation in Nieves is not that different from the numerous cases in
which New York courts found a relationship. As in the aforementioned examples, the
plaintiffs’ images were captured in a public place and used for communicative purposes
to illustrate a story.143 But the courts in those cases found that the very fact that the
plaintiffs’ images were captured in a public place and that the editor made the decision to
use their photographs to illustrate a news story was enough to establish a relationship.144
Because a legal standard for how to determine a relationship had never been established
by these, or any other New York courts, the Nieves court had no guidance.
The Appellate Division unanimously affirmed the lower court’s ruling to deny the
defendant’s motion to dismiss.145 In a brief opinion with little analysis, the court brushed
140
Nieves v. HBO, No. 100966-05, slip op. at 2 (Sup. Ct. N.Y. County Jan. 10, 2006).
141
Id.
142
Id.
143
Arrington v. N.Y. Times, 55 N.Y.2d 433, 441 (1982);Murray N.Y. Magazine, 27 N.Y.2d 406 (1971).
Messenger v. Gruner, 94 N.Y.2d 436 (2000).
144
Arrington v. N.Y. Times, 55 N.Y.2d 433, 441 (1982);Murray N.Y. Magazine, 27 N.Y.2d 406 (1971).
Messenger v. Gruner, 94 N.Y.2d 436 (2000).
145
Nieves v. HBO, 817 N.Y.S.2d 227 (1st Dep’t 2006).
24
aside HBO’s argument and held that the case must not be dismissed because HBO had
not proven that the use of Nieves image bore a “real relationship” to the documentary, and
that Nieves was “singled out and unduly featured merely because she was on the
scene.”146
As Nieves illustrates, applying the real relationship test to reality television shows
is problematic. The purpose of reality television falls somewhere in between trade and
public interest, but it does not fit completely into either category.147 Reality television
surely makes a profit, but as New York courts have held, a media’s profit motive alone
does not automatically mean it has a trade purpose.148 Likewise, much of reality television
is a matter of public interest, even if it is entertaining and not as serious as traditional
media was in the past.149 With traditional forms of media, it was much easier to define
something as a matter of public interest. But reality television is not so easily defined. It’s
history in documentary and its value as social commentary has to compete with its
oftentimes entertaining plots and sensational themes.
Additionally, it is the very essence of reality television to capture people on
camera. This means that some of those people might feel like they were “ singled out and
146
Id. at 227.
147
HILL, supra note 4, at 55. “There is no one definition of reality programming, but many, competing
definitions of what has come to be called the reality genre.” Id.
148
Stephano, 64 N.Y.2d 174.
149
See supra part II B and accompanying notes.
25
unduly featured” merely because they were at the scene.150 The real relationship test never
set out a standard to deal with 24hour cameras. Reality television film crews are all over
the country filming shows. It’s likely that many people will get caught on tape. The real
relationship test does not provide any guidance to courts to determine when a relationship
is formed by the use of these unlicensed images. Instead of protecting the media from
lawsuits, the use of the real relationship test in reality television has broadened the
statute’s reach to include genres of the media that are not as highbrow as traditional
media.
Besides Nieves, several other misappropriation claims in other jurisdictions have
been filed against reality television producers.151 Courts, using similar tests as the real
relationship test, have continued to broaden the reach of a misappropriation claim. Like in
Nieves, courts have not used the real relationship test in a way that narrowly construes a
misappropriation claim to prohibit only the trade use of an image.
For example, there have been two lawsuits filed against Dog: The Bounty Hunter
for invasion of privacy by misappropriation. In the reality television show, Dog: The
Bounty Hunter, cameras follow Duane “Dog” Chapman, and his wife, Beth, as they track
down fugitives.152 In Barnes v. Brown, the bounty hunters were pursuing criminals in
150
Nieves v. HBO, 817 N.Y.S.2d 227, 227 (1st Dep’t 2006).
151
Many of these lawsuits in other jurisdictions were filed under common law claims of misappropriation
that use a real relationship test.
152
A&E website for Dog: The Bounty Hunter http://www.aetv.com/dog_the_bounty_hunter/dog_about.jsp
26
Colorado Springs, Colo.153 During the course of their pursuit, the bounty hunters went to
the Aztec Motel and got into a physical fight with the motel owner.154 The owner brought
suit against the producers of the show, alleging invasion of privacy by
misappropriation.155 The court denied defendant’s motion to dismiss.156 The case must
continue, the court held, to determine 1) whether Dog: The Bounty Hunter was
newsworthy and of legitimate public concern and 2) whether the use of Plaintiff’s image
was reasonably connected to the pursuit of the fugitive featured in that particular
episode.157 The court stated that the test to determine if the newsworthy exception will
apply is that if the publication “is made in the context of, and reasonably relates to, a
publication concerning a matter that is newsworthy or of legitimate public concern.”158
Because the subject matter of the show was an issue of fact, the court did not dismiss the
case.
Another suit involving the show arose in Hawaii. Sampaio v. Chapman involved
an episode of the show that featured the Chapmans pursuing a fugitive who had
purchased a bail bond and then failed to show up at a court hearing.159 The bounty
153
Barnes v. Brown, 06-CV2556.
154
Id.
155
Id. In Colorado, misappropriation is a common law tort claim.
156
Id.
157
Id.
158
Id. (citing Joe Dickson & Assoc., LLC v. Dittmar, 34 P.3d 995 (Colo. 2001).
159
Sampaio v. Chapman, No. 06-00316, slip-op (Dist. Hawaii Oct. 30, 2006).
27
hunters captured the fugitive.160 The fugitive, Joseph Sampaio, brought suit against the
Chapmans.161 He filed numerous claims, including invasion of privacy by
misappropriation.162 Once again, the court denied the defendant’s motion to dismiss, even
though the defendants argued that Dog: The Bounty Hunter is a documentary of
legitimate public concern.163 In a brief discussion, the court held that Hawaiian law was
unsettled in the area of misappropriation. Even if Dog: The Bounty Hunter was not a
commercial program, there was no “well settled rule” in Hawaii misappropriation did not
apply to noncommercial uses.164 The court never discussed the real relationship test.
160
Id.
161
Id.
162
Id.
163
Id.
164
Id. at 4, (citing Fergerstrom v. Hawaiian Ocean View Estates, 441 P.2d 141, at 144 (Haw. 1968).
28
Further illustrating the problem with the real relationship test in reality television,
two other recent cases used the test to dismiss suits against media producers. In the
movie, “Borat: Cultural Learnings of America for Make Benefit Glorious Nation of
Kazakhstan,” which is part fiction and part documentary, actor Sasha Baron Cohen
portrayed a Kazakhstan journalist, Borat, who traveled the United States interviewing
people about western culture.165 A plethora of lawsuits have been filed against the
production company, including one filed by two men from a South Carolina college
fraternity who were featured in the movie making racist comments.166 The men signed a
consent form, but alleged that the movie producers got them drunk before they signed,
making their consent invalid.167 The men filed suit for invasion of privacy by
misappropriation against actor Sasha Baron Cohen and the movie production company.168
In a victory for the media, the court in Doe v. One America Productions, Inc. dismissed
the misappropriation claim.169 “The court cannot stress to highly the importance of the
free speech rights at stake in this case.” 170 The court stated that movies like Borat serve a
legitimate public interest because they “affect public attitudes and behavior in a variety of
165
Patrick Douglas, Borat' a strange ride of vulgarity and laugh, Great Falls Trib., March 16, 2007, at 5T.
166
Michael Klein, Who's a dupe, who's a dope?: "Borat" was a dirty trick, say some of the "actors" in the
film. A Philadelphia legal seminar weighs their claims, Phila. Inquirer., Dec. 16, 2006, Entertainment
News.
167
Id.
168
Doe v. One America Productions, Inc., unpublished opinion (Feb. 15 2007).
169
Id.
170
Id.
29
ways, ranging from direct espousal of a political or social doctrine to the subtle shaping
of thought which characterizes all artistic expression. ”171 This public value is not
eliminated because the movie is “entertaining,” the court went on.172 Because Borat was
considered to have a high public interest value, the court never answered whether the
plaintiff’s imaged bore a relationship to the movie. It simply dismissed the case because
political commentary in Borat was protected speech under the First Amendment.
Finally, in a New Jersey suit filed against New York Times Television for its series
“Trauma: Life in the ER,” the court dismissed a misappropriation claim.173 The suit was
filed by nine plaintiffs who were being treated at Jersey Shore Medical Center while New
York Times Television was filming footage for an upcoming episode of the show.174 The
plaintiffs, who all signed consent forms, argued their consents were invalid and brought
several claims against New York Times Television, including the tort of
misappropriation.175 The court held that misappropriation claims were only valid when
“defendant's use of plaintiff's likeness was for a predominantly commercial purpose.”176
The court found that Trauma: Life in the ER was not a commercial endeavor, but instead
171
Id.
172
Id.
173
Castro v. NY Times Television, 851 A.2d 88 (N.J. App. Div, 2004).
174
Id.
175
Id. The plaintiffs also brought claims against the hospital, but this discussion focuses on the
misappropriation claims brought against the media defendant.
176
Id.
30
was a broadcast with newsworthy intentions.177 Additionally, the court did not distinguish
between entertainment and news, holding that even entertainment could be a matter of
public interest worthy of First Amendment protection.178 Further, the court stated that
“[n]o one has the right to object merely because his name or his appearance is brought
before the public, since neither is in any way a private matter and both are open to public
observation.”179 Trauma: Life in the ER was not produced for the purpose of trade.180
All of these cases, whether the courts found for or against the media, illustrate
why the real relationship test is problematic in today’s media world. Reality television
might not be completely newsworthy, but it is also not completely a form of a trade,
which is what the statute was intended to govern. The real relationship test provides no
standard for courts to use to determine how and when an image is connected to a story.
Further, the definition of a relationship by many courts depends on how socially
redeeming and newsworthy a story is.
The practical effects of the real relationship test on new media could be harmful.
If courts continue to find that unlicensed uses of images in reality television render the
media liable, television producers will be forced to seek licenses for anyone who might
177
Id.
178
Id. “The privilege of enlightening the public [is] not, however, limited to the dissemination of news in
the sense of current events. It extend[s] also to information or education, or even entertainment and
amusement, by books, articles, pictures, films and broadcasts concerning interesting phases of human
activity in general, as well as the reproduction of the public scene in newsreels and travelogues.”
179
Id.
180
Id.
31
appear on camera. In the 24hour media world we live in, where reality television camera
crews could be seen on many street corners across the country, requiring this extensive
licensing scheme is too burdensome, and too expensive, for the media. The cost of courts
not dismissing claims early is also burdensome on the media. Allowing misappropriation
claims to go forward, and possibly to be heard by juries, could have a chilling effect on
the media.
IV. NEW YORK SHOULD REPLACE THE REAL RELATIONSHIP TEST
The real relationship test was intended to help courts define when a publication or
broadcast is for “purposes of trade” under §§50 and 51.181 But overtime, the real
relationship test has broadened the definition of trade to include more than the statute
originally intended. This Note argues that New York courts should no longer use the real
relationship test to define “purposes of trade” under §§50 and 51.182 Instead, New York
courts could adopt a broad approach to the definition of trade, which exempts all
communicative and expressive uses of images from claims. This broad definition would
exempt all communicative and expressive uses regardless of their perceived social value,
thus eliminating the need for courts to make value judgments about the media. A broad
definition would also be consistent with the interests the statute is intended to protect, the
commercial misappropriation of images used by a defendant for exploitive and profit
181
Lahiri, 295 N.Y.S. 382.
182
The definition of advertising, however, can remain the same, which is the “solicitation for patronage of a
particular service or product.” See infra Part and accompanying notes.
32
making trade purposes. Additionally, a broad definition would preserve the free exchange
of ideas in the media in today’s world of reality television.
A. New York Should Adopt a Broad Approach to the Definition of Trade
For guidelines to define trade purposes, New York courts could look to the
definition of trade purposes as it is defined in the Restatement 3d of Unfair Competition.
Referred to as the right of publicity, §46 of the Restatement defines the claim as:
One who appropriates the commercial value of a person's
identity by using without consent the person's name,
likeness, or other indicia of identity for purposes of trade is
subject to liability for the relief appropriate under the rules
stated in §§48 and 49.183
Further, §47 provides a definition of “purposes of trade” that is applied to right of
publicity claims in jurisdictions which recognize a common law right of publicity.
The name, likeness, and other indicia of a person's identity are used "for
purposes of trade" under the rule stated in §46 if they are used in
advertising the user's goods or services, or are placed on merchandise
marketed by the user, or are used in connection with services rendered
by the user. 184
Though some jurisdictions sometimes use the real relationship test in interpreting right of
publicity claims as well as right of privacy claims,185 the Restatement’s guidelines present
a clear and straightforward test that can be used in all claims of commercial
183
Restatement 3d of Unfair Competition §46.
184
Restatement 3d of Unfair Competition §47
185
Claire E. Gorman, Publicity and Privacy Rights: Evening out the Playing Field For Celebrities and
Private Citizens in the Modern Game of Mass Media, 53 DePaul Law Review 1265 (2004).
33
misappropriation, both those under privacy and publicity. Instead of muddling case law
with inconsistent applications of the real relationship test for defining trade, New York
courts could look to this as a guide. This definition provides three clear standards for
when something is used for purposes of trade. If an image is used in advertising goods or
services, placed on merchandise marketed by the user, or are used in connection with
services rendered by the user. These descriptions of when a use is for trade purposes
would prohibit only the unauthorized commercial use of an image.186
The Restatement’s definition of trade also identifies distinct categories that are
exempt from claims. “[U]se "for purposes of trade" does not ordinarily include the use of
a person's identity in news reporting, commentary, entertainment, works of fiction or
nonfiction...”.187 While news reporting is one of those categories, it also recognizes that it
is not the only exemption.188 Commentary, entertainment and works of fiction and
nonfiction are also included.189
186
Messenger v. Gruner, 94 N.Y.2d 436 (2000); Howell v. N.Y. Post Co., 81 N.Y.2d 115 (1993); Finger v.
Omni, 77 N.Y.2d 138 (1990); Stephano v. News Group Publications, 64 N.Y.2d 174 (1984); Arrington v.
N.Y. Times, 55 N.Y.2d 433 (1982); Murray v. N.Y. Magazine, 27 N.Y.2d 406 (1971).
187
Restatement 3d of Unfair Competition §47
188
New York courts have also recognized that there are several exemptions to misappropriation claims
besides newsworthiness. See supra Part II A and B.
189
Restatement 3d of Unfair Competition §47 Comment c states “The scope of the activities embraced
within this limitation on the right of publicity has been broadly construed. Thus, the use of a person's name
or likeness in news reporting, whether in newspapers, magazines, or broadcast news, does not infringe the
right of publicity. The interest in freedom of expression also extends to use in entertainment and other
creative works, including both fiction and nonfiction. The use of a celebrity's name or photograph as part of
an article published in a fan magazine or in a feature story broadcast on an entertainment program, for
example, will not infringe the celebrity's right of publicity. Similarly, the right of publicity is not infringed
by the dissemination of an unauthorized print or broadcast biography. Use of another's identity in a novel,
play, or motion picture is also not ordinarily an infringement.”
34
Applying a broad standard such as this provides a consistent form of analysis that
is easier for courts to apply. New York courts can eliminate the real relationship test and
instead ask two questions – Is the image being used to advertise, market, or in connection
with the user’s services? And then, is the use of the image communicative or expressive?
Any use that is communicative is not trade. And if it is not trade, there should be no
liability under the misappropriation statute.
While the real relationship test forces courts to question the public value and
importance of a publication or broadcast by including the public interest in the definition
of a relationship, the Restatement’s definition broadly exempts these categories, without
forcing courts to make value judgments about how high the public interest of a story is.
As difficult as reality television and many forms of new media are to define, they surely
fit into these broad categories.190 This test works in the world of new media because it
does not require a factbased determination as to why a producer or editor uses an image.
Instead of the circular reasoning of the real relationship test, this definition exempts any
communicative or expressive use of an image.
B. A Broad Definition is Consistent with the Statute’s Purpose
The misappropriation claim, whether encompassed in a right of privacy or
publicity, prohibits the use of an image in a commercial way that could make a profit that
190
See generally, HILL, supra note 4.
35
the person in the image should be entitled to. 191 Both claims derived from Roberson v.
Rochester Folding Box. Co.192 Some jurisdictions recognize both common law rights of
privacy and a separate right of publicity.193 In these jurisdictions, the right of privacy
protects personal injury from the appropriation of an individual’s image, and the right of
publicity protects the economic interest one has in her image.194 Essentially, the right of
privacy is “the right to be let alone,” while the right of publicity is the right to control the
use of one’s persona.195 A right of publicity is treated similar to that of a copyright or
trademark claim because it protects a property right in one’s name and image.196 While
celebrities and noncelebrities alike can bring a right of publicity claim; the measure of
damages is based on the commercial value of one’s persona.197
In New York, state courts do not recognize common law rights of publicity or
privacy. Thus, §§50 and 51 encompass both rights and are the only means for a plaintiff
to seek redress.198 The legislative intent of §§50 and 51 and the basis in Roberson make
191
See generally, Comment b of the Restatement 3d of Unfair Competition states in part “the rules stated
here may be useful by analogy in evaluating claims under the right of privacy arising from an unauthorized
commercial exploitation of a person's identity.”
192
Comment b of the Restatement states that the principle principal historical antecedent of the right of
publicity is the right of privacy, and cites Roberson v. Rochester Folding Box. Co.
193
George P. Smith, The Extent of the Protection of the Individual’s Personality Against Commercial Use:
Toward a New Property Right, 54 S.C. LAW. REV. 1 (2002).
194
See generally, Claire E. Gorman, Publicity and Privacy Rights: Evening out the Playing Field For
Celebrities and Private Citizens in the Modern Game of Mass Media, 53 DePaul Law Review 1247 (2004)
(describing the history and differences between publicity and privacy claims).
195
Id.
196
Id.
197
Id.
198
See, Tara B. Mulrooney, A Critical Examination of New York’s Right of Publicity Claim, 74 ST. JOHN’S L.
36
clear that the statutes were intended to protect one’s right to control the use of their
persona, not to statutorily create a right to be let alone that is not recognized in the state
of New York.199 Thus, New York’s misappropriation claim protects an interest that is more
akin to a right of publicity claim, the right to financially control the use of one’s
persona.200
The Supreme Court summed up this interest in its only case to deal with a right of
publicity: “No social purpose is served by having the defendant get free some aspect of
the plaintiff that would have market value and for which he would normally pay."201
And as Comment c in the Restatement describes:
[I]f a photograph of the plaintiff is included in the
defendant's publication merely for the purpose of
appropriating the plaintiff's commercial value as a model
rather than as part of a news or other communicative use,
the defendant may be subject to liability for a
merchandising use of the plaintiff's identity.
37
The history of New York’s misappropriation statute is similar.202 “Other than in the purely
commercial setting… , an inability to vindicate a personal predilection for greater privacy
may be part of the price every person must be prepared to pay for a society in which
information and opinion flow freely.”203 The statute was intended to be strictly construed,
and to apply only to situations of advertising or trade use. “Since the statute is in
derogation of the common law, it must be strictly construed.”204 Keeping the definition
limited to the abovementioned categories is inline with the purpose and intent of the
claim.
C. A Broad Definition Preserves the Media’s First Amendment Rights
Recognizing that the interest protected by the statute is a financial interest in one’s
persona, the application of a broad definition that only prohibits the use of an image for
advertising or trade purposes upholds First Amendment values. The real relationship test
confused the issue of what the statute was intended to protect. It does not matter why an
image is used in a publication or broadcast, that decision is made by the editor or
producer and is their First Amendment right. What matters for purposes of the statute is
whether the image is being appropriated in a commercial way. This question can be
answered by looking only at whether it is used for trade purposes, or for communicative
purposes.
202
Arrington 55 N.Y.2d 433.
203
Arrington v55 N.Y.2d at 442.
204
McGraw v. Watkins, 373 N.Y.S.2d 663, 665 (1975).
38
IV. CONCLUSION
As media adapts to reflect social change and values, both stylistically and
contextually, the real relationship test is turning out to be a hindrance to the media. We
now live in a voyeuristic society, where real people become celebrities on television,
where anyone can circulate a home video across the globe in a matter of seconds, where
reality television has replaced the traditional role of the documentary. Media has
transformed into more genres than were even imaginable at the time when courts first
began applying the real relationship test to misappropriation claims. When the test was
developed, media was comprised of broadcast television, newspapers and magazines.
Though, courts still struggled with applying the real relationship test to traditional media,
the difficulty is exemplified in today’s media environment. In order to foster the free
exchanged of ideas in today’s changing media environment, courts should abolish the use
of the real relationship test and should apply a broad approach that exempts all
communicative and expressive uses from misappropriation claims.
39