False light invasion of privacy occurs when information is published about a person that is false or places the person in a false light, is highly offensive to a reasonable person, and is published with knowledge or in reckless disregard of whether the information was false or would place the person in a false light.
Although this tort is similar to defamation, it is not the same. The report need not be defamatory to be actionable as false light. This type of invasion of privacy tends to occur when a writer condenses or fictionalizes a story, or uses stock footage to illustrate a news story.
False light includes embellishment (the addition of false material to a story, which places someone in a false light), distortion (the arrangement of materials or photographs to give a false impression) and fictionalization (references to real people in fictitious articles or the inclusion in works of fiction of disguised characters that represent real people). Some courts may consider works of fiction constitutionally protected expressions even if they contain characters that resemble, or clearly were based on, identifiable individuals known by the author or creator.12
The use of a person’s name or likeness for commercial purposes without consent is misappropriation. The law protects an individual from being exploited by others for their exclusive benefit. A person’s entire name need not be used. If the person could reasonably be identified, the misappropriation claim probably will be valid.13
However, incidental references to real people in books, films, plays, musicals or other works, whether fact or fiction, generally are not misappropriations.14 Moreover, use of a photograph to illustrate a newsworthy story is not misappropriation. Even if a photo is used to sell a magazine on a newsstand, courts usually will not consider that use a trade or commercial purpose. The line between news and commercial use is not always clear, however, and even photographs used to illustrate an article may create liability for misappropriation if the article has an overriding commercial purpose.15
Right of publicity
Some states recognize a right of publicity, which protects a celebrity’s commercial interest in the exploitation of his or her name or likeness. In some jurisdictions, this right may descend to heirs or be assigned to others after the person’s death.
Use of a famous person’s name or likeness, without consent, to sell a product is usually misappropriation. However, other unauthorized uses of celebrities’ images may violate their publicity rights.
Model Christie Brinkley, for example, successfully sued to stop the unauthorized use of her picture on posters that hung in retail stores but did not advertise any product.16 Thus, trading on a celebrity’s fame and popularity even for noncommercial purposes, including public relations campaigns or other promotions, is an unauthorized use of the famous person’s name or likeness that could violate his or her right of publicity.
12. See, e.g., Polydoros v. Twentieth Century Fox Film Corp., 965 P.2d 724 (Cal. 1998), aff’g 79 Cal. Rptr. 2d 207 (Cal. Ct. App. 1997).
13. See, e.g., Wendt v. Host International, 125 F.3d 806 (9th Cir. 1997) (holding that actors from television series could sue owner of airport bars featuring robots displaying likenesses to their characters from the series).
14. Benavidez v. Anheuser-Busch, Inc., 873 F.2d 102 (5th Cir. 1989).
15. See Hoffman v. Capital Cities/ABC, Inc., 33 F. Supp. 2d 867 (C.D. Cal. 1999) (ordering magazine to pay $1.5 million in actual damages for publishing actor’s electronically altered photograph as part of an article on new spring fashions and authorizing punitive damages in addition to actual damages), rev’d, 255 F.3d 1180 (9th Cir. 2001); see also Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002), cert. denied, 537 U.S. 1029 (2002).
16. Brinkley v. Casablancas, 438 N.Y.S.2d 1004 (N.Y. App. Div. 1981).