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Advertising agencies, publishers and broadcast companies produce
a steady stream of messages for the general public. The content of
these messages often includes information about, or images of,
specific individuals—whether they are models, celebrities,
employees, or people on the street. In preparing this content,
publishers, broadcasters and agencies have always been aware of
potential liability for claims of defamation of character or
violation of an individual's rights of privacy and publicity.
However, the rapid expansion of digital communications means that
any company distributing information via e-mail or the web now
faces many of the same legal risks. Someone may file a claim
against you seeking to impose liability for economic loss or
personal injury allegedly caused by some error or negligence in the
content of the work that you produce. Personal injury can be either
physical or emotional, including a damaged reputation. This article
explains the key legal issues that communications professionals
must be aware of.
Defamation is intentional communication of a false statement
about someone to a third party—a statement that injures the
subject's good name and reputation, damages the subject's standing
in the community, or deters others from associating with him or
her. Defamation is a civil wrong (also referred to as a tort). In
this context, civil means that the matter is a dispute between two
private parties rather than a proceeding by the government against
a party. The injured person can seek remedy by bringing a lawsuit
against the person or company that made the false statement. The
remedy will usually be in the form of damages. (There are several
types of damages—more information about this in a moment). When an
injured party takes legal action, he or she is the plaintiff in the
matter and the individual or company that made the untrue statement
is the defendant.
There are two different categories of defamation: slander and
Slander is oral defamation—a spoken assertion about someone that
is not true. It happens when an individual tells one or more
persons something false about someone else, usually in direct
conversation. Other forms of communication are covered by
Libel includes untruthful statements expressed in a fixed or
permanent medium. For example, they could be in writing, on a sign,
in a picture, or broadcast on radio, television or the Internet.
This means that the statement has the potential to reach a very
wide audience. The false statement must hold the subject up to
ridicule, hatred, scorn or contempt, cause the subject to be
shunned or ostracized, or to suffer mental anguish and humiliation.
The individual or company responsible for printing or broadcasting
the statement (for example, a newspaper, a magazine, a political
organization, or a broadcaster) is open to a lawsuit by the person
the statement was about.
In the United States, most states demand a published retraction
for libelous statements. A printed retraction serves as an
admission of error and a public correction. Usually, the injured
party does not have the right to file a lawsuit if a correction is
made. Very minor mistakes in reporting, however, are not considered
to be libelous. This would include such simple errors as misstating
someone's age. (Incorrect information can also present someone in a
false light—more about this below.) In addition, it's generally the
case that government bodies and public records are exempt from
Certain types of untrue statements are so serious that they will
always qualify as defamation. They are grouped together under the
term “defamation per se.” Each of them is considered incapable of
having an innocent meaning. Such accusations include:
If spoken, such statements are “slander per se.” If printed or
broadcast, they are “libel per se.” The statement is actionable in
itself without the plaintiff introducing additional facts because
the harmful intent is considered to be obvious.
When a claim of defamation is made, the following aspects will
be examined very carefully:
A plaintiff must establish that the alleged defamation refers to
him or her specifically. A statement is not defamation unless it
identifies the person being attacked.
The statement must be shown or communicated to at least one
other person before it is actionable by law.
Statement of fact
The statement must be reasonably understood by third parties to
purport fact. If it is presented as a fact rather than as an
opinion, it will be actionable. In general, opinions, satire and
works of fiction—if they are clearly identified as such—are not
The statement must be false. If it's true and can be proven,
it's not defamation.
In a lawsuit, no one can recover damages unless he or she has
suffered injury. The plaintiff will be asked to provide proof of
damaged reputation, mental anguish, suffering, or economic
In many instances, whether or not the person who made the
statement is found to be liable will depend on whether the injured
party is a public figure or a private person. If a public figure is
involved, the matter may be of public concern. Although libel is
defined under state law, the U.S. Supreme Court has consistently
ruled that First Amendment protection of free speech applies to
matters of public concern. Because of this, a public figure must
prove that the libelous statement was made with malicious intent.
Otherwise, the statement will be protected as a form of fair
commentary. Everyone has a constitutional right to express opinions
or make fair comment on public figures. To recover damages, a
well-known plaintiff (such as a politician, government official,
celebrity, or other prominent person) who alleges libel (by a
newspaper, a radio station, et cetera) must prove that the
defendant made the statement with reckless disregard for the
truth—perhaps even knowing that it was false. In contrast, there is
greater protection for a private person. A private person does not
need to prove malice on the part of the defendant, merely that some
degree of negligence was involved in not checking for truthfulness
before publishing the false statement.
In many instances, a defendant who is found to be liable will be
ordered by the court to pay the plaintiff's attorney's fees.
If the defendant is found liable for defamation, the plaintiff
will be awarded damages in the form of monetary compensation. The
amount of money that the defendant is ordered to pay might be
determined in several different ways.
Depending on the details of the case, the amount paid to the
plaintiff might be limited to actual damages and special damages.
Actual damages are out-of-pocket costs that resulted directly from
the defamation, such as medical bills. Special damages (also called
consequential damages) are for other types of harm such as a
measurable loss of business. They are awarded in an amount deemed
to compensate for the specific losses named. Actual damages and
special damages are not speculative or subjective. They can be
easily calculated in monetary terms. They are different from
general damages, which do not have evidence of a specific monetary
These are subjective, both in nature and in monetary value. They
include such things as pain and suffering. General damages serve as
compensation for losses that will continue into the future and for
which no exact value can be calculated. In most cases, malice must
be proved before a plaintiff can receive general damages for harm
done to his or her reputation. However, in cases of defamation per
se, there is no need to prove malice because such claims involve
vicious statements that are considered to be obviously harmful.
These are also referred to as exemplary damages because, in
addition to serving as a punishment of the defendant, they set an
example for the public. They may be awarded if the defendant acted
in a particularly egregious way—willfully committing acts that were
oppressive, violent, wanton or fraudulent. Punitive damages are
often requested by plaintiffs in lawsuits, but they are seldom
awarded by the court.
At the other end of the scale, the court may order the defendant
to pay only a small (nominal) amount of money. Nominal damages may
be awarded if a wrong occurred but the actual harm was minor. This
sometimes happens in cases where the plaintiff is a public figure.
A small amount of money may be awarded to acknowledge that the
plaintiff was right but did not suffer any substantial injury.
The next issue that communications professionals need to be
aware of is the right of privacy. U.S. law recognizes each person's
right to live without being subjected to unwarranted and undesired
public scrutiny. Essentially, this is the right to be let alone,
free from intrusion into matters of a personal nature. Violation of
this right constitutes an invasion of privacy, which is a civil
wrong. In general, there are four different categories of
This refers to an aggressive and shocking intrusion on
reasonably expected solitude. It sometimes occurs in newsgathering,
such as when paparazzi invade someone's privacy by trespassing on
private property to photograph the person, thereby unreasonably
interfering with his or her seclusion. Intrusion can also include
such things as wiretapping or reading someone else's mail.
Everyone has the right to keep personal matters to oneself, and
to keep others from disclosing private facts that are not of
legitimate concern to the public. It is an invasion of privacy if
someone causes a person embarrassment and humiliation by
publicizing information about that person's private affairs that
reasonable individuals would find to be objectionable.
This means publicizing information about a person that
unreasonably creates an untrue or misleading portrayal. It can
include such things as falsely attributed acts or beliefs. False
light claims are not recognized in all states. In jurisdictions
where they are recognized, the misrepresentation does not need to
be defamatory, but it must be made with knowledge of its inaccuracy
and it must be offensive or objectionable in some way to a
This means the use of a person's name, likeness, voice or other
aspects of personal identity without permission for commercial
purposes. Protection against this category of invasion is usually
called the right of publicity.
Each person has the exclusive legal right to control and profit
from the use of his or her identity (name, image, personality,
voice, et cetera) to promote and sell goods or services.
Appropriation of someone's identity without consent violates that
person's right of publicity. However, the extent of legal
protection varies from state to state. The issue is further
complicated by the fact that many cases bump up against federally
protected free speech—the right to express one's thoughts and
opinions in a free society. In each case, the challenge for the
court is to find an appropriate balance between the plaintiff's
right of publicity according to that state's laws and the
defendant's right of free speech as guaranteed by the First
Amendment to the U.S. Constitution. In order to do this,
distinctions are made between three different categories of
If the defendant has created a work of pure fiction such as a
novel, any alleged resemblance between an actual person and a
character in the work will not usually be regarded as a violation.
When aspects of someone's personal identity are used in fine art
such as a painting, drawing or sculpture, the use will not usually
be regarded as a violation. The original artwork may be displayed
and sold without a problem.
If someone is a public figure or becomes involved in newsworthy
events, his or her right of publicity is not violated by media
coverage. The law allows exceptions to the right of publicity when
someone's identity is used for educational or editorial purposes,
such as in coverage of news, public affairs, sports, or political
campaigns. This makes it possible to produce such things as
magazine articles, books, and documentaries about individuals.
In these first two categories, free speech is the starting
point. The use of someone's identity is generally allowed because
prohibiting such use would be an unconstitutional restraint on free
speech. However, the third general category of use is not
considered to be a form of free speech because it is done primarily
with the intention of producing a profit:
Permission must be obtained before aspects of someone's identity
may be used in connection with the advertising or sale of goods and
services. This includes such things as a name or likeness (even a
look-alike or sound-alike) in an advertisement or on a T-shirt,
coffee mug, postcard or any other merchandise. Appropriation of
identity and exploitation of it for commercial gain may result in a
lawsuit. The onus will be on the plaintiff to prove that there was
unauthorized commercial use that violated his or her right of
publicity. For example, unauthorized use of a celebrity's name in
connection with a product might appear to be an endorsement, which
would have the effect of increasing sales.
Confusion arises when a particular use doesn't fit neatly into
just one category. Some uses are hybrids. For example, when a
depiction from a work of fine art is subsequently applied to a
commercial product. In an attempt to sort out these issues, a
recent decision by the California Supreme Court emphasized the
concept of “transformative” use. This is an idea that has been
borrowed from copyright law, where it refers to fair use of
material that would otherwise be protected, provided that it is
used in a way or for a purpose that is different from the original
to such an extent that the expression or meaning becomes
In the context of publicity rights, a “transformative”
commercial work might be interpreted as primarily an expression of
the artist's or designer's own ideas rather than a mere likeness of
a particular individual. By adding significant creative elements,
the artist is creating a new meaning for the image. On a
case-by-case basis, this exception to publicity rights might also
extend to other types of stylization or distortion such as parody
and caricature. From a legal standpoint, this concept is rather
vague and open to interpretation. For this reason, the California
precedent might not be followed by other states.
This is in contrast to products, services and advertisements
that use more conventional images, particularly of celebrities. A
literal depiction is a reproduction or imitation of a person's
likeness. Such an image is not protected when it is used for
commercial purposes, such as a photo of a rock musician used on a
Depending on the state, the exact details of the right of
publicity may vary between celebrities and non-celebrities, and
between living or deceased persons. For example, in the state of
California, the heirs of a personality can continue to protect his
or her right of publicity. California makes liable anyone who,
without consent, uses a dead celebrity's name or likeness to
promote products or services within seventy years after death.
(There are even legal firms that specialize in managing the
licensing rights of dead celebrities such as James Dean and Marilyn
Monroe, and they generate significant licensing income for the
For creative professionals, the bottom line is that you must
obtain permission before using aspects of anyone's personal
identity for commercial purposes. The rights of privacy and
publicity makes it necessary to obtain signed releases when working
with models, even if they are employees of your firm. Whenever you
are creating and distributing content that includes references to,
or images of, real people, and those individuals are clearly
recognizable, you must be cautious about issues of defamation,
privacy and publicity.
Shel Perkins is a graphic designer, management consultant and educator with more than twenty years of experience in managing the operations of leading design firms in the U.S. and the U.K. He has served on the national boards of AIGA and the Association
of Professional Design Firms. He has been honored as an AIGA Fellow "in recognition of significant personal and professional contributions to raising the standards of excellence within the design community." The third edition of his best-selling book, Talent
Is Not Enough: Business Secrets For Designers, is available from New Riders.
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