From the hotline

From the Fall 2002 issue of The News Media & The Law, page 31.

The Reporters Committee operates a toll-free hotline (800-336-4243) for journalists with questions about free press and freedom of information issues. In this column, attorneys who answer our phones, as well as media lawyers from around the country, discuss questions we often get from journalists.

What follows is not meant to be relied upon as legal advice specific to any reader’s situation, but is rather here for informational purposes, to help journalists understand how the law affects their work. You should consult a lawyer for help with any specific situation, or call the Reporters Committee’s legal assistance hotline at 1-800-336-4243 for more information or for help in finding a lawyer.

Q: I’ve interviewed a number of celebrities, both for my own Web site and as a freelancer for other publications, and I want to compile the best ones and publish them as a book. But some of the celebrities’ agents say they will not grant me permission, and that going ahead with it would violate their clients’ “publicity rights.” I never signed any written agreement with the celebrities or their agents. Do they have the right to control my work?

A: Publicity rights present an interesting issue. We asked two attorneys who practice in this area how they would address this question.

Laura Lee Stapleton, Jackson & Walker, Houston, Texas. Based on the facts as set forth in your question, it does not appear that the celebrities could assert a valid claim that you have violated their right of publicity if you publish the interviews as a book.

The right of publicity is a creature of state law and varies from state to state, but most states require a plaintiff to plead the following elements (or elements very similar in nature) in order to state a claim for violation of the right of publicity: (1) defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent of the plaintiff to the appropriation; and (4) resulting injury to the plaintiff.

On first glance, it appears that the book you’ve described would meet all of these elements and that the celebrities would have a valid claim. However, the determination whether a given use of plaintiff’s likeness (name, photo, etc.) is actionable necessitates a weighing of the private interest of the right of publicity against matters of public interest calling for constitutional protection, and a consideration of the character of these competing interests. In many instances, courts have held that where a defendant publishes matters of public concern or newsworthy material (which includes most information about legitimate celebrities), a public figure plaintiff may not recover except upon a showing that the defendant acted with knowledge of falsity or with reckless disregard for the truth.

Based on the facts as presented in your question, as long as the material in the book is presented truthfully (the interviews are accurately portrayed), the celebrities would not have a valid claim against you.

Many cases in various jurisdictions even hold that you could use the likeness of the celebrities when advertising your book, as long as you use it truthfully. (Do not imply that the celebrities have endorsed your book or that they said something they did not say, or that the interviews have never been seen before if they’ve been published elsewhere.)

Of course, you will need to consider other issues such as whether you are violating the copyright of any prior publisher by publishing the interviews in a book format. This also assumes that in addition to making no written agreements with the celebrities or their agents, you also made no oral promises or representations with either of them that might conflict with the opportunity to use the interview materials at a later time.

Landis C. Best, Cahill & Gordon, New York. A public figure’s “right of publicity” generally concerns the right of that person to control their name, image or likeness within a commercial context, that is, in endorsing certain goods or services. Before a celebrity’s name or photograph can be used in an advertisement for goods or services, the celebrity must give her approval.

In a non-commercial context, however, celebrities and public figures are granted less protection due to First Amendment concerns, and can be written about as long as any reporting on them or their lifestyles is not maliciously inaccurate. This is sometimes referred to as the “newsworthiness exception” to publicity claims. In the case of unauthorized biographies, for instance, a public figure may not be happy with the content of the biography, but there is generally no legal recourse for the public figure to take.

In the case of a celebrity who has already granted a journalist an interview, and absent any agreement to the contrary regarding exclusivity or restrictions on publication rights, public figures who have achieved a certain degree of fame or notoriety cannot interfere with the dissemination of information about them.

This would seem to be especially true where the public figure has consented to be interviewed in the first instance and the original interview is already in the public domain. Further, any advertising that may be contemplated for the book, e.g., an advertisement which states “interviews with celebrity X”, should likewise be constitutionally privileged, as incidental to the promotion of the constitutionally protected publication.

Q: I am a newspaper reporter covering a federal investigation. Is it possible to gain access to a federal search warrant issued in the case?

A: Most jurisdictions recognize a qualified right of access to search warrants and accompanying affidavits. However, this right of access can be overcome if disclosure of the search warrant would compromise an ongoing investigation, or impair individuals’ privacy rights or safety.

When a search warrant is issued, the judge has discretion to order the sealing of the warrant and accompanying affidavit. In light of the qualified right of access, journalists can request that the court open the search warrant and accompanying affidavit or redact portions that may interfere with ongoing investigations, privacy rights or personal safety.

Q: A federal government agency claims that it made a mistake and released too much information to me under the federal Freedom of Information Act, and now it wants me to return some of it. Am I obliged to do so?

A: Generally, once a federal agency releases information under the FOI Act, the recipient of that information is free to do with it as he sees fit. He may disseminate it, publish it or keep it private. Moreover, there is no provision in the FOI Act that would allow the government to retrieve information that it has released. Once the information is in the public domain, the government cannot compel its return.

However, if there are future requests made for the same information by other requesters, the agency would most likely be able to withhold its release by citing one of the FOI Act exemptions.