Commercialization in a Non-Commercial Setting:
Tort Liability for Editorial Content
A Magazine Division paper presented at the
AEJMC Convention in Atlanta
Aug. 11, 1994
by
Robert L. Hughes, associate professor
School of Mass Communications
Virginia Commonwealth University
Richmond, VA 23284-2034 Though still unusual,
commercialization suits based on the
editorial content of books, magazines and newspapers have
multiplied during the past decade. The tort of
commercialization--using a person's name or likeness for a
commercial purpose--is most closely linked to advertising. But
as risks increase for the non-business side of publishing,
editors and educators must become better acquainted with this
off-beat claim. Few judgments are ultimately upheld against
traditional media doing traditional things, but straying from
that path, even carelessly, can precipitate a crippling damage
award. Even with a winning defense, the personal and financial
costs associated with litigation can be devastating.
This paper will review the rapid and often confusing
development of the tort. It will then examine the
newsworthiness and incidental use defenses, paying attention to
specific situations potentially troublesome to editors of
traditional magazines, house organs and the publications of non-
media organizations.
The object is not to break new theoretical ground. It is to
find some order in the obscure and scattered applications of a
tort to which both legal and professional magazine education
often give dangerously short shrift.
ORIGINS OF THE TORT
Commercialization, also called misappropriation or just
plain appropriation, is one of the four traditional branches of
invasion of privacy. (The others are intrusion, disclosure of
embarrassing private facts, and false-light.)
Personal privacy issues were raised as early as 1869 by the
publication of photographs, but modern privacy law dates from an
1890 article by Samuel Warren and Louis Brandeis. Disturbed by
the "Yellow Journalism" of the era, the attorneys advocated a
judicially created, common-law right to protect a person's
thoughts, sentiments and emotions from exploitation.
In the first judicial response to the authors' invitation,
Roberson v. Rochester Folding Box Co., the New York Court of
Appeals denied any right to privacy existed in the law. The
court, however, suggested the legislature could create one by
statute, something it promptly did.
A few other states followed New York's legislative
approach. Others took the common law route. The courts of
these states generally adopted the expression of the common law
found in the influential Restatement of Torts: "One who
appropriates to his own use and benefit the name or likeness of
another is subject to the other for invasion of privacy."
One way or another, most states today recognize the
commercialization branch of invasion of privacy. Although the
laws frequently share common threads, going back to the
Restatement or the pioneering New York statute, it's imperative
that editors examine the law of their own jurisdictions as well
as in other key places where their publications circulate--
places, in other words, where they might be sued. (A starting
point is provided by footnote.)
New York law is important because as a publishing industry
center, New York is an obvious magnet for suits, and because over
the years its courts have developed expertise and a large body of
case law on what are rare issues elsewhere. Their decisions have
no legal force outside of New York, but their rationales have
enormous persuasive impact.
Warren and Brandeis conceived of the right of privacy as the
right to be left alone, to be free of unwanted public scrutiny.
In the early cases plaintiffs sought redress for having their
names publicly associated with something they found disagreeable,
such as beer, cigarettes or, in the always cited Rochester
Folding Box Case, even flour. They wanted to recover for
their embarrassment and injured feelings; economic damage was
irrelevant.
But there is another sort of plaintiff the Warren and
Brandeis theory won't accommodate comfortably. These plaintiffs
are public personalities--athletes, models or other celebrities,
who trade on their public images. Arguably, if they haven't
literally waived their privacy rights by exploiting their own
personas, their privacy interests don't carry nearly as much
weight as they do for most people who just want to be left alone.
To skirt this logical inconsistency a distinct "right of
publicity" emerged in some jurisdictions. It differs from
commercialization primarily in that its victims--public figures
in a very loose sense--are seeking financial compensation for the
commercial value of use of their names or likenesses. Their
injury is more in the nature of the taking of a property interest
than that of an unwanted personal disclosure, although it may at
times be both.
This offshoot of the original tort developed slowly and
erratically. Some courts initially refused to expand the
commercialization to reach losses relating to other than mental
distress, leaving celebrities without a privacy remedy.
Others developed a separate "right of publicity" action
distinct from the tort of commercialization. Still others merged
the two actions into a single tort. Since for purposes here
the main distinction between the two torts is the measure of
damages, a single-tort model will be followed to avoid
complications irrelevant to this paper.
THE COMPLAINING PARTY'S CASE
In any kind of personal injury suit, a plaintiff must prove
specific factual elements essential to his or her claim. At a
minimum in every jurisdiction a commercialization plaintiff must
prove three facts: publication, identification, and a commercial
purpose.
Publication
With the mass media, publication will be so rarely an issue
that it doesn't merit discussion except to suggest that in some
cases involving celebrity plaintiffs a court might be willing to
enjoin publication where it appears an adequate remedy at law
might not exist. For example, if the defendant is financially
judgment-proof or if irreversible harm will result from the
publication, a court may overlook the publication requirement and
impose a prior restraint, there being no adequate remedy at law.
Identification
In most places, whether a person is legally identified
depends not on whether his or her name is used but, much more
broadly, whether a reader or viewer can reasonably associate the
plaintiff with publication.
This is true even in a state like New York where courts are
constrained by a statute that limits identification to the use of
an actual "name, portrait or picture." In Ali v. Playgirl,
Inc., for example, Muhammad Ali persuaded a federal court
applying New York law to enjoin the sale of a magazine that had
on its cover a drawing of a nude black man sitting on a stool in
the corner of a boxing ring with the caption, "Mystery Man." In
an accompanying verse the figure was referred to as "the
Greatest." The court concluded the distinctive features of the
drawing, coupled with the textual material, were clearly
identifiable as Ali.
Except in the most tenuous relationships--an ordinary
citizen was not identified by the depiction of his non-descript
horse--courts will readily find a likeness, and thus
identification. A California court showed no hesitancy in ruling
that imitating a distinctive voice was actionable.
Commercial purpose
The crux of most cases is whether a particular use is
"commercial" in a legal sense. What is commercial certainly
includes most advertising and trade purposes: for example, using
plaintiff's name in advertising copy or incorporating a
likeness of the plaintiff into the product itself.
The legal definition, however, often appears to go well
beyond that self-evident formulation. Under the common law, as
expressed in the Restatement of Torts, commercialization is
appropriation to the defendant's "own use or benefit." On its
face this language is broad enough to include uses that most
would consider non-commercial by any reasonable measure of the
word. For recovery to occur in practice, however, the commercial
purpose must ordinarily be clear and primary, especially when
claim is based on the right to be left alone as contrasted with
the loss of financial gain.
In contrast to the broad construction of the common law, the
language of statutes is more restrictive and permits recovery
only when the use of the narrowly defined likeness is for
"advertising or trade." But if the common law is read
narrowly, the statutes are elastic enough so that the outcomes
appear to be similar for either approach.
The issue of whether a purpose is "commercial" can be
analyzed either as an element to be proved by the plaintiff's
case or that of the defense in the sense that the defendant will
try to refute the plaintiff's assertion about the nature of the
purpose. Here it will be examined here as a defense.
THE FIRST AMENDMENT OR NEWSWORTHINESS DEFENSE
From the outset privacy law recognized that compelling
societal interests put limits on the plaintiff's individual
privacy concerns. Rejecting an opportunity to allow privacy
rights to encroach into the marketplace of ideas, an oft-quoted
New York common-law decision said:
The public policy involved in leaving unhampered
the channels for circulation of news and information in
considered of primary importance... [F]ree press is
so intimately bound up with fundamental democratic
institutions that, if the right of privacy is to be
extended to cover news items and articles of general
public interest, educational and informative in
character, it should be the clear expression of
legislative policy.
No legislature has yet taken such an expansive view of
privacy rights nor, under first amendment doctrine, could it.
Thus, the practices of normal journalism aren't considered
commercial. Nor are those of history, education or, indeed, of
almost anything factual the public reads. Their contribution to
the general understanding eclipses any commercial motive their
publishers may have.
Courts are reluctant to craft and then impose their own
standards of newsworthiness especially when the publisher is a
newspaper, magazine, film, television program or other
traditional informational medium available to the general public.
Except perhaps in cases involving sexually explicit publications,
they typically defer to whatever a publisher has decided will
interest his or her readers. (Legal rules in other kinds of
suits may less forgiving.) Yet even concept of newsworthiness
has limits.
Factual errors and newsworthiness
Factual errors in a publication, particularly factual errors
that exaggerate its public interest value, may undercut a
newsworthiness defense. In the landmark privacy ruling of Time
v. Hill the U.S. Supreme Court held that deliberate falsity or
reckless disregard for truth bars the newsworthiness defense
since one who tells deliberate or reckless lies cannot be
interested in the discovery of truth.
In Ali v. Playgirl the court rejected a first amendment-
based newsworthiness defense, focusing on whether text associated
with the cover was the "plainly fictional and allegedly libelous
bit of doggerel."
In another case the National Enquirer published a cover
picture of actor Clint Eastwood linked to a false story linking
him romantically to two actresses. Even though the cover related
to a story that was prima facie newsworthy, the fact that the
story was invented stripped both it and the cover of first
amendment protection. The fictionalization must have been done,
the court reasoned, only for a commercial purpose. The case has
been widely criticized because the court refused to distinguish
deliberate and careless falsehoods.
Generally, one of two kinds of judicial balancing can be
expected in these cases. If the falsehoods are substantial,
courts balance the material's informational value against the
plaintiff's privacy interests, putting a thumb on the privacy
side of the scales. On the other hand, if the publication
contains only negligent or careless falsity, courts become
sensitive to the possibility that sanctions could chill the
marketplace of ideas and tip the scales initially to favor free
speech. Thus, when a newspaper published a wrongly identified
picture (in a non-defamatory context), the court termed the error
"innocent" and dismissed the claim. This "tipping" only
establishes a presumption, one that may be overcome.
Advertisements in disguise
While the first amendment is said not protect "a subterfuge
or cover for private or commercial exploitation," courts in
practice seem reluctant to look beneath the surface of editorial
pieces although they clearly appear as "advertisements in
disguise."
The "beauty makeover" section of "Seventeen" magazine, for
example, was found to be newsworthy despite the identification
and pricing of specific products, many of whose makers advertised
elsewhere in the magazine. Similarly, in Stephano v. News
Group the court refused to find a model's picture wearing a
stylish jacket a commercial purpose, even though the accompanying
article listed the prices, the stores where the jacket could be
purchased, and the date of availability. Magazine officials
swore that the photo and article appeared only for its news
value.
Magazine covers and book jackets
In that they attract attention and promote sales, magazine
covers and book jackets are like ads. This special commercial
character poses special risks to editors. The general rule is
that if the cover or jacket is reasonably related to a matter of
public interest that is part of the publication's editorial
content, then it is not actionable. When a person identified
on the cover doesn't appear in the editorial content, a close
question is presented.
In Oma v. Hillman Periodicals Inc. the court refused to
allow the plaintiff, a professional boxer, to recover damages for
a picture on the cover of a magazine that referred to an article
inside. The article itself did not refer specifically to the
plaintiff. The court observed the cover was designed to sell the
magazine. Nonetheless, it found a reasonable relationship between
the picture and the article that was generally critical of
professional boxing.
In another case, a New York appeals court reversed a trial
court and held that the unauthorized publication of plaintiff's
photograph on the cover of the New York Times Sunday magazine was
not a commercial purpose. The photo was used associated with an
article in which the plaintiff wasn't mentioned. The only
connection between the plaintiff and the story was that the story
concerned middle-class blacks and the plaintiff was black.
In still another case, a book review was reprinted on a book
cover. The review compared the style of a plaintiff author with
that of the book. The court said this use was newsworthy and did
not constitute commercialization, despite there being no
editorial link between the two. For the court, the independent
event of the book review saved the newsworthiness defense.
In contrast, a professional model successfully sued the
publisher of a religious book who used photograph on its cover
without authorization. So did a business when its name
appeared on a cover. In neither case was there any connection
with the contents of the book nor, as in the book review case,
was there any external happening to elevate the uses to ones that
were protected as newsworthy. The depictions were solely to
exploit.
Other photographs and illustrations
Editors should exercise caution when selecting photographs
and art work to illustrate stories. This is especially true when
that selection must be done before the story is actually in hand.
Photographs and illustrations that relate to otherwise protected
stories share the newsworthiness defense, but those that don't
may be actionable. In Thompson v. Close-Up Inc., for example,
pictures used in conjunction with a story on "dope peddling" were
not protected since plaintiff had no connection with the story.
(There may also be a libel problem here).
Ordinarily, absent any blatant bad motive or commercial
purpose, courts will reach to find a protected relationship
between the artwork and the article or story. Thus, in Finger v.
Omni Publications the court concluded that a photo of a
plaintiff and his six children, published in connection with an
article on caffeine and in vitro fertilization, was protected
even though the defendant did not use caffeine and none of his
children had been conceived by artificial means. The court
concluded a "real relationship" existed between the fertility
theme, which is of public interest, and the large family. Suits
like this one are of the original Warren and Brandeis right to be
left alone mold.
More threatening to editors are those of the right of
publicity variation: using the likeness of a celebrity or someone
who makes his or her living with that likeness. In Stephano v.
News Groupa photograph of a professional model in a magazine
feature on current fashions was encompassed by the newsworthiness
exception. A sufficient relationship was found between fashion
and modeling. Such a relationship was absent in Mayers v.
Michals. In that case, models whose photos were used to
illustrate a particular story about a rape victim, were held to
have a cause of action.
Non-traditional media
If the newsworthiness defense generally shields newspapers
and magazines from commercialization liability when they report
on matters of public interest, the outcome is less predictable
when the defendant is not a traditional news medium. Nothing in
the statutes or common law restricts the defenses to the news
media in theory, but media that are not traditional face closer
scrutiny in practice.
For example, in the recent case of Beverley v. Choices
Women's Medical Center the New York Court of Appeals refused
to consider a newsworthiness defense where the defendant was a
not-for-profit hospital and where the publication, a calendar,
promoted only its business. The trial court found that the use
of a anti-abortion physician's name and picture on a calendar
issued by an abortion clinic was primarily a solicitation for
patronage and not sufficiently educational or informative to
afford it newsworthiness protection.
The calendar contained illustrations honoring significant
contributions by American women. The Court of Appeals agreed
that the calendar was an advertisement, even though it had
editorial content, because of the prominent placement of the
clinic's name, logo, address and phone number on each page. Even
though they appeared on only one page, the plaintiff physician's
name and photograph were said to be central not incidental to the
commercial appeal.
On the other hand, a federal court applying Texas law held
that a non-profit organization's advertisements using plaintiff's
name to solicit funds was not a commercial purpose since no
profit or benefit was conferred directly on the organization and
since the advertisement involved a matter of public concern.
A photograph of an identifiable non-celebrity on the cover
of a corporation's annual report was protected, a New York Court
ruled, on the narrow ground that because such reports are
required by the Securities Exchange Commission and they must have
a public interest element. But in another jurisdiction in a
1992 private-plaintiff case, a non-profit corporation that
published a picture of one on the front of its financial report
and the court determined it was for the trier of fact to
determine whether the publication was primarily for advertising
or trade purposes. A photo on the cover of a program for a
sports event was not protected as newsworthy, since the program
"was not for sale or available to the general public." Results
like these can be reconciled.
A federal court applying the common law in Texas concluded
that a beer company's documentary concerning Hispanic recipients
of the Congressional Medal of Honor was newsworthy, despite the
increased goodwill the company acquired and the fact that the
company's logo was prominently displayed throughout the piece.
The court reasoned that the company was not directly trying to
sell beer and thus the documentary lacked the requisite
commercial nature.
THE INCIDENTAL USE DEFENSE
A use which is isolated or "incidental" is not actionable.
An incidental use ranges from a face in a crowd to the
republication of a newsworthy photograph in an advertisement that
promotes the sale of the publication. It may also include the
use of a real person's identity in connection with a fictional
work where a newsworthiness defense may be prove troublesome.
Although fiction frequently has great social value, courts don't
always see a connection between it and the marketplace of
ideas.
An example of the incidental-use defense found in a
fictional context concerns the film "Sea of Love." There, the
plaintiff appeared in a nine-second portion of the opening title
scene. Since the appearance constituted nothing of significance
and was "merely incidental," the suit was dismissed. Courts
sometimes refer to such a use as de minimus, rather than
"incidental."
On the question of house ads and incidental use, the leading
case is still Booth v. Curtis Publishing Co. In that case a
magazine republished newsworthy photographs of a famous actress
in advertisements whose sole purpose was to solicit
subscriptions. The court acknowledged it was the likeness of the
actress that commanded readers' attention, but said her publicity
interest was outweighed by the publication's need to demonstrate
its content and quality. The same outcome was reached in Namath
v. Sports Illustrated. Important to both cases was the absence
of any implication that the actress or athlete endorsed the
publication.
The other side of the coin can be found in Tellado v. Time-
Life Books Inc. There, a newsworthy photograph of a veteran
was published for the first time in a house ad. Because it had
not previously appeared as editorial content, the argument
usually available to defendants that the photo did no more than
accurately depict the content of the publication wasn't available
and Time-Life lost. For the incidental use defense to prevail
with self-promotion, there must be republication of something
newsworthy.
Collateral uses
The wasn't the situation in Cher v. Forum International.
In that case, the actress objected to the use of an interview,
her photo on the cover and the statement "Join Cher and FORUM's
hundreds of thousands of other adventurous readers today." The
interview and the photo were protected as newsworthy, but the
false implication that Cher endorsed the publication was an
unprotected, "collateral" use.
Incidental uses are closely related to the basic publishing
business. Collateral uses are separate enterprises. A
collateral use is by definition a advertising or trade use--a
solicitation for patronage or the promotion and sale of some
collateral commodity or service--and examples include celebrity
endorsements and sale of related products, such as photographs,
posters, mugs or t-shirts.
In Mendonsa v. Time Inc. the product was a "limited
edition" photograph. In 1987 Time sold to the public a picture of
a sailor kissing a nurse in Times Square that had been taken
moments after the Japanese surrender in 1945. The court said
that while the original and subsequent publications were
protected as newsworthy either in a current or historical sense,
the sale of the photographs was a collateral enterprise and
didn't share that protection.
Distinguishing collateral from incidental uses doesn't
always lead to consistent results, exaggerating the already
considerable hazards of litigation. In Titan Sports Inc. v.
Comics World Corp. a court left it to a jury to decide whether
posters of professional wrestlers, designed to be removed from
the magazine and displayed, were a collateral usage for purposes
of trade or part of the magazine's editorial content. On the
other hand, a court applying the common law of Ohio decided for
itself as a matter of law no cause of action existed based on the
sale of mugs with depictions of 1956 and 1960 Olympic gold medal
winners. It concluded this accurate historical information
enjoyed a newsworthiness privilege.
One of the more difficult recent cases treating the
incidental-collateral issue is New Kids on the Block v. News
America Publishing Inc. In that case a newspaper and magazine
invited readers to participate in a survey to determine a band's
most popular member, to listen to the New Kids, and to leave
messages for the New Kids, all via a 900-number telephone
service. The court expressed concern that the 900-number service
would be construed as a commercial venture apart from the
commercial undertaking of running the publication, but
nonetheless dismissed the claim because it felt the use was in
connection with news and matters of public interest. The only
rule in this area is extreme caution.
DAMAGES
In cases involving private figures, absent malice or similar
bad motivation, damages have been nominal in the reported cases.
A recent Alabama case found no economic loss to individuals who
had no unique quality or value that would result in commercial
value to the defendant simply by use of their photos, they were
seated and unidentified. The court didn't address the
plaintiffs' possible objection to being associated with a
particular activity, perhaps because they were in fact associated
with it. The claim was addressed as a kind of unjust
enrichment. In another case, damages to a three-year-old who
was pictured in an ad were set at $100--the same as the on-going
modeling fee, since the child enjoyed no special reputation and
suffered no particular mental distress.
Looking at damages and ignoring the toll taken by the
litigation process, one concludes that if a name or likeness is
to be appropriated, it is preferable for it to be that of someone
who doesn't make a living from that name or likeness.
CONSENT
Prudence dictates a valid consent or release be obtained
whenever a use is unprotected or at the margin of protected
status. While it's possible for a release to be written, oral or
implied by a course of conduct, it's obviously preferable from
a proof standpoint to obtain a written release. Some states
require it. Failure to do so, if receiving oral or implied
consent may still reduce damages. ENDNOTES
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