California

California recognizes the four privacy torts, and it has a misappropriation statute. Cal. Civ. Code § 3344. California also has a law that creates civil liability for news photographers who trespass and invade a person’s privacy with malicious intent, allowing a judge to triple a jury’s damages award and award punitive damages. Cal. Civ. Code § 1708.8. The law was amended in 2005 to create an additional privacy tort for assault committed with the intention of capturing images or recordings of the plaintiff. Anyone who commits an assault with the intention of photographing someone is liable for the full extent of damages laid out in § 1708.8, even if no privacy is invaded.

Intrusion: Undercover news reporter secretly videotaped the workplace conversations of employees at a telepsychic marketing company. Even though the employees lacked a complete expectation of privacy in those conversations, since they could be overheard by others, they may still recover because they were covertly recorded. Sanders v. American Broadcasting Companies, Inc., 978 P.2d 67 (Cal. 1999).

News show reporter wore a concealed camera to an acting workshop to investigate potential violations of California labor laws. The court allowed the intrusion claim to go forward to determine whether the workshop was a private place and whether the newsgathering method was highly offensive. A jury eventually found that one cannot reasonably expect an acting workshop to be private. Turnbell v. American Broadcasting Co., No. CV 03-3554 SJO (FMOx) (C.D. Cal. Oct. 28, 2004).

A man sued Out Magazine for publishing a photograph of him dancing shirtless in a story entitled “Dirty Dancing” about drug use and unsafe sex at wild parties. The court found no intrusion because the party the man attended was open to any member of the public who bought a ticket, at least 1,000 people were present, and he was dancing on an elevated platform. Prince v. Out Publishing, 30 Med. L. Rptr. 1289, 2002 WL 7999 (Cal. Ct. App. 2002).

A television network secretly videotaped a news producer’s conversation with a potential source as the two stood at the source’s doorstep and later aired a five-second excerpt of the videotape, even though the source declined an on-camera interview. There was no physical intrusion into the source’s privacy because she was in full public view from the street while speaking with the producer, and the network filmed her from a public place across the street. In addition, the source spoke freely with the producer and must have known the contents of the conversation might be repeated, and the network never revealed her name or address. Deteresa v. American Broadcasting Cos., Inc., 121 F.3d 460 (9th Cir. 1997). The California Supreme Court adopted a different standard for taping telephone conversations a conversation is considered confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded. Flanagan v. Flanagan, 41 P.3d 575 (Cal. 2002).

Two people injured in a car accident could sue for intrusion based on the fact that a cameraman recorded emergency care given in a rescue helicopter, regardless of the fact that the accident victims expected their conversations with rescue workers in the helicopter to be overheard by others and the fact that they could not claim a right of privacy at the accident scene prior to being moved to the helicopter. Shulman v. Group W Productions, 955 P.2d 469 (Cal. 1998).

A television news broadcast about a judge who was given the lowest rating possible in a poll of attorneys included footage of him leaving his home. The judge’s intrusion claim failed because he was in public view when the footage was filmed, and because the news crew did not enter his property, contact him physically, endanger his safety, or disclose where he lived. Aisenson v. American Broadcasting Co., 269 Cal. Rptr. 379 (Cal. Ct. App. 1990).

The wife of a heart attack victim had valid claims for trespass and intrusion against a television news crew that entered her home without her consent to videotape unsuccessful attempts by paramedics to save her husband’s life. Miller v. National Broadcasting Co., 232 Cal. Rptr. 668 (Cal. Ct. App. 1986).

The surreptitious recording and photographing of a “quack” doctor, who was later convicted of unauthorized practice of medicine, may constitute an intrusion. Subsequent publication of the photos in Life magazine was not essential to the intrusion upon seclusion claim, but was admissible to establish damages. Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971).

A domestic violence victim who allowed a television news crew to come into her home could not claim trespass or intrusion. It was irrelevant to her trespass and intrusion claims that she asserted her consent to the media’s presence was obtained through fraud. A possible claim based solely on fraud or intentional misrepresentation did exist, though. Baugh v. CBS Inc., 828 F.Supp. 745 (N.D. Cal. 1993).

Private Facts:The publication of a photo of revelers at a public “Exotic Erotic Ball” was protected because the activities were observable by thousands of strangers. Martin v. Penthouse, 12 Med. L. Rptr. 2058 (Cal. Ct. App. 1986).

A domestic violence victim who was filmed in her home by a television news crew could sue for disclosure of private facts because the facts broadcast as a result of the news crew’s presence went beyond the information available in a police report. Also, the broadcast may have been degrading, and the victim’s involvement in the domestic violence incident might not have been newsworthy. Baugh v. CBS Inc., 828 F.Supp. 745 (N.D. Cal. 1993).

Broadcasting footage of rescue workers helping two car accident victims in an emergency helicopter did not create liability for publication of private facts because the rescue efforts were newsworthy. Shulman v. Group W Productions, 955 P.2d 469 (Cal. 1998).

False Light: A magazine and cable television network ran photos of a children’s baseball team to illustrate a story about adult coaches who molest children on sports teams. The team manager pleaded guilty to child molestation charges, but the assistant coaches and players who were not molested raised a sufficient claim for false light. M.G. v. Time Warner, Inc., 89 Cal.App.4th 623 (2001).

A photograph of an actress and a producer leaving a restaurant together, accompanied by an article stating that they were dating when, in fact, the producer’s wife was present at the time the photograph was taken might constitute false light invasion of privacy. Fellows v. National Enquirer, 721 P.2d 97 (Cal. 1986).

A photograph of a married couple in an affectionate pose, taken without their knowledge or permission, that was used to illustrate an article that said love at first sight was founded upon sexual attraction alone and would be followed by divorce was sufficient to establish a false light claim. Gill v. Curtis Publishing Co., 239 P.2d 630 (Cal. 1952).

Videotape broadcast of a judge leaving his home did not place him in a false light because it was a fair, accurate depiction of the person and scene and was not highly offensive. Aisenson v. American Broadcasting Co., 269 Cal. Rptr. 379 (Cal. Ct. App. 1990).

The juxtaposition of a picture of attendees of an “Exotic Erotic Ball” with pictures of performers at the ball did not amount to false light because the photos truthfully depicted both the revelry and performances that occurred at the ball. Martin v. Penthouse, 12 Med. L. Rptr. 2058 (Cal. Ct. App. 1986).

A sexually explicit magazine’s publication of a cartoon and sequence of photographs portraying an anti-pornography activist could not be viewed by a reasonable reader as statements of fact, and therefore, did not place the activist in a false light. Dworkin v. Hustler, 668 F.Supp. 1408 (C.D. Cal. 1987), aff’d on other grounds,867 F.2d 1188 (9th Cir. 1989).

A former baseball player who claimed his image appeared in a drawing used to advertise beer could not pursue a false light claim against the advertisers because he was unable to show that the advertisement caused any damage to his business or property. Newcombe v. Adolph Coors Co., 157 F.3d 686 (9th Cir. 1998).

Misappropriation: A court allowed a claim to go forward by a professional model who sued a coffee company for using a photograph of him on its label without compensating him or obtaining his permission. The case was sent back to the lower court to determine whether any of the company’s profits could be attributed to the use of the model’s photograph. Christoff v. Nestle USA, Inc., 152 Cal. Rptr. 3d. 1439, 2007 WL 1874240 (June 29, 2007).

Dustin Hoffman sued a magazine after a computer-altered photograph of him, dressed in drag as he was in the movie “Tootsie,” made him appear to be wearing certain designer clothes and was published as part of a spring fashion story. Overturning a lower court’s decision in favor of the actor, the Ninth Circuit ruled against Hoffman, finding that the magazine did not publish with actual malice and was not pure commercial speech, meaning it was thus was entitled to full First Amendment protection. Hoffman v. Capital Cities/ABC, Inc., 225 F.3d 1180 (9th Cir. 2001).

The public interest in a documentary about surfing precluded a depicted surfer’s misappropriation claim. Dora v. Frontline Video Inc., 18 Cal. Rptr. 2d 790 (Cal. Ct. App. 1993).

A photograph of revelers at an “Exotic Erotic Ball” was not misappropriation because the likenesses of the revelers were not commercially exploitable, and the magazine that published the photograph did not use the reveler’s likenesses for advertising purposes. Martin v. Penthouse, 12 Med. L. Rptr. 2058 (Cal. Ct. App. 1986).

Hustler magazine’s use of a woman’s photograph to illustrate an article attacking her anti-pornography campaign was not misappropriation because her image was not used exclusively for Hustler’s commercial gain. The fact that Hustler operated for profit did not automatically give its contents a commercial purpose. Leidholdt v. L.F.P. Inc., 860 F.2d 890 (9th Cir. 1988).

A feminist author did not state a misappropriation claim against a magazine for using her name in a sexually-explicit photograph and cartoon captions because the magazine did not appropriate commercial benefit of her performance, and the captions did not suggest her endorsement of the magazine. Dworkin v. Hustler, 867 F.2d 1188 (9th Cir. 1989).

A magazine was entitled to use a celebrity’s picture and refer to her in a truthful manner as part of an advertisement soliciting subscriptions, as long as the photo indicated the content of the publication regardless of whether the celebrity had actually endorsed the publication. Cher v. Forum, 692 F.2d 634 (9th Cir. 1982).

The “news account” exception to misappropriation under the California statute barred recovery by a domestic violence victim who was filmed by a television news magazine. Baugh v. CBS Inc., 828 F.Supp. 745 (N.D. Cal. 1993).

Advertisers who used a former professional baseball player’s likeness, without his consent, in a drawing that appeared in an advertisement for beer misappropriated his image under common law and under the California statute, so long as the drawing could easily be identified as depicting the player. Newcombe v. Adolph Coors Co., 157 F.3d 686 (9th Cir. 1998).