Filmmakers are often uncertain how far they can go when shooting documentaries, without invading the privacy of others. Generally speaking, persons caught on camera in a public place do not have a legal right to preclude others from photographing them. But a lot depends on how their photo is used, and whether it is newsworthy. If the photo is being used on a product, like pickles, you will need to secure a depiction release. But the same photo appearing in a newspaper would not provide grounds for a successful suit for invasion of privacy.
The United States Constitution does not mention a right of privacy. According to the United States Supreme Court, however, such a right is implicit in the Constitution and the Bill of Rights. The right of privacy has been defined as the right to live one’s life in seclusion, without being subjected to unwarranted and undesired publicity. In other words, it is the right to be left alone.
Like defamation, the right of privacy is subject to constitutional restrictions. The news media, for example, is not liable for defamatory statements that are newsworthy unless they are made with knowing or reckless disregard of the truth (i.e., actual malice).
Unlike defamation, a cause of action for invasion of privacy does not require any injury to one’s reputation.
Suppose you were in your backyard sunbathing in the nude--your backyard is surrounded by a solid wood fence preventing passersby from seeing you. Suddenly a photographer for The National Enquirer hops over the fence and snaps your picture. Soon the photograph is displayed in newspaper tabloids near supermarket checkout stands across the nation. Can you sue for defamation?
No, because you were sunbathing in the nude and truth is an absolute defense to defamation. Could you sue for invasion of privacy? Yes. You have a reasonable expectation of privacy in your enclosed backyard. Suppose you were sunbathing in the nude on your front porch, in open public view. Could you bring a successful action for invasion of privacy? No, because you do not have a reasonable expectation of privacy under these circumstances. Thus, whether an intrusion into your privacy will be actionable depends on whether you have a reasonable expectation of privacy.
Many defenses to defamation apply to invasion of privacy. But truth is not a defense. Revealing matters of public record cannot be the basis for an invasion of privacy action because the information is already public. Express and implied consent are valid defenses. If you voluntarily reveal private facts to others, you cannot recover for invasion of your privacy.
Privacy actions typically fall into four factual patterns.
Intrusion into One’s Private Affairs
This category includes such activities as wiretapping and unreasonable surveillance. The intrusion must be highly offensive. Whether an intrusion is highly offensive depends on the circumstances. Most people would find it offensive to discover a voyeur peering through their bedroom window. On the other hand, a salesman knocking on your front door at dinnertime may be obnoxious, but will not be sufficiently offensive to state a cause of action.
Public Disclosure of Embarrassing Private Facts
One who gives publicity to a matter concerning the private life of another is subject to liability for invasion of privacy, if the matter publicized is of a kind that:
a) would be highly offensive to a reasonable person, and
b) is not of legitimate concern to the public. In other words, it is not newsworthy.
An example of this type of invasion of privacy would occur if someone publicizes embarrassing derogatory information on another person, publicizes it and the information is not of legitimate interest to the public.
An action for appropriation of another’s name or likeness is similar to action for invasion of one’s right of publicity. The former action seeks to compensate the plaintiff for the emotional distress, embarrassment and hurt feelings that may arise from the use of one’s name or likeness on a product. The latter action seeks to compensate the plaintiff for the commercial value arising from the exploitation of one’s name and likeness.
As with the right of publicity, a person cannot always control the use of his name and likeness by another. While you can prevent someone from putting your face on their pancake mix, you cannot stop Time magazine from putting your face on its cover. Thus the use of someone’s name or likeness as part of a newsworthy incident would not be actionable.
Publicity placing a plaintiff in a false light will be actionable if the portrayal is highly offensive. This type of invasion of privacy is similar to defamation but harm to reputation is not required. An example of false light invasion of privacy could entail a political dirty trick such as placing the name of a prominent Republican on a list of Democratic contributors. Although this person’s reputation may not be harmed, he has been shown in a false light.
Congratulations to our client producer Jon Stern on completion of his first TV season of the outrageous comedy "National Terrorism Strike Force: San Diego: Sport Utility Vehicle" (NTSF: SD:SUV::). The series is produced for Cartoon Network’s Adult Swim (Turner Broadcasting) and is a parody of the numerous police procedurals on network television.
The series features Paul Scheer, Rob Riggle, Kate Mulgrew, Brandon Johnson and June Raphael among others. Trailer at: http://www.youtube.com/watch?v=XKylO_zfGIs
"Forks Over Knives"
Brian's Wendel's documentary Forks Over Knives will be theatrically released beginning with a 19 city roll out on May 6, 2011. The feature film examines the claim that most, if not all, of the degenerative diseases that afflict us can be controlled, or even reversed, by rejecting our present menu of animal-based and processed foods.
Forks Over Knives (FOK) will play at Landmark, Regal and AMC theaters, among others. An advance screening in Portland, Oregon generated $42,000 over five weeks at Regal Fox Tower theater. The film was featured on the CNN.com: http://eatocracy.cnn.com/2011/03/03/vegan-on-the-silver-screen.
The film was also featured on Oprah.com: http://www.oprah.com/oprahshow/Diet-Power-Video
Information on the film and the trailer are available at http://www.forksoverknives.com.
"Last Fast Ride"
Last Fast Ride will be shown at the Newport Beach Film Festival on May 1, 2011. The film produced by Shannon Factor and directed by Lilly Scourtis Ayers premiered at Slamdance. This documentary is about Marian Anderson,a controversial and influential punk rock lead singer and songwriter who died at the age of 33 from a heroin overdose.
Through a combination of concert footage, photographs, and interviews with key people in Marian's life, director Lilly Ayers pieces together the portrait of a fragmented and damaged girl who was left to fend for herself in a world of danger and exploitation. Narrated by punk rock legend and actor Henry Rollins, this riveting film covers Marian's idyllic youth, her tormented adolescence, and her tragic adult life, climaxing in an unforgettable ending.
The film will screen at the Triangle Square, theater 1, 1870 Harbor Blvd., Costa Mesa, CA 92627 at 8:00 PM Sunday, May 1, 2011. http://lastfastridefilm.com/