Keith Mack
In recent times, celebrities have increasingly been able to limit the public use of their identities in creative works under the 'right of publicity', an offshoot of state privacy law. This has led to a number of First Amendment lawsuits, including one filed by the Electronic Frontier Foundation (EFF) against a Massachusetts television company, and another involving Hulk Hogan and Gawker Media, which resulted in Hogan being awarded $31 million in damages.
| Characteristics | Values |
|---|---|
| Celebrity Involved | Hulk Hogan |
| Nature of Case | Sex tape lawsuit |
| Parties Involved | Hulk Hogan, Gawker Media |
| Outcome | Jury awarded Hogan $140 million; parties settled on $31 million; Gawker went out of business |
| Implications | Celebrities can persuade a jury that their right to privacy outweighs the freedom of the press |
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What You'll Learn
Hulk Hogan sued Gawker Media for privacy invasion
Hulk Hogan, a former professional wrestler, sued Gawker Media for invasion of privacy after it published a sex tape of him and a friend's wife. Hogan's suit was financially backed by Peter Thiel, a Silicon Valley entrepreneur who had been outed as gay by Gawker. Hogan's lawyers argued that the privacy of many Americans was at stake, while Gawker's lawyers said that the case could hurt freedom of the press in the United States.
Hogan sued Gawker for $100 million in damages, claiming that he was "completely humiliated" by the video's publication and that he was unaware that the encounter was being filmed. Gawker's counsel argued that the footage was newsworthy and protected by the First Amendment and that Hogan should not have had an expectation of privacy. The jury ultimately rejected Gawker's arguments and found that the company had violated Hogan's privacy and caused him emotional distress. Hogan was awarded $140 million in total damages, including $115 million in compensatory damages and $25 million in punitive damages.
Gawker initially vowed to appeal the award but ultimately settled with Hogan for $31 million. However, the settlement was still too costly for the online media company, and Gawker filed for bankruptcy in June 2016. It was sold to Univision two months later for $135 million. The case had a lasting impact on media law and showed that, in certain circumstances, celebrities could persuade a jury that their right to privacy outweighs the freedom of the press.
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EFF sues to protect free speech about celebrities
The Electronic Frontier Foundation (EFF) has asked the Supreme Court to apply the First Amendment to speech about celebrities. EFF, together with the Organization for Transformative Works and the Comic Book Legal Defense Fund, filed a brief asking the Supreme Court to reverse the expansion of the "right of publicity", which gives celebrities the ability to limit the public use of their name, likeness, or identity. While a limited version of this right is understandable, it has expanded beyond its original scope.
The Ninth Circuit's rule, which imports the "transformativeness" principle from copyright fair use law, has been criticised for not making sense in right of publicity cases. For example, in EA v. Davis, the Ninth Circuit dismissed free speech concerns and found EA liable because its video game failed to "transform" the identity or likeness of former professional football players. The “transformative use” test asks whether the use of someone's identity creates something new with a different purpose or character.
The EFF argues that the “transformative use” test will make it harder to create artistic work based on real people without their permission, and that celebrities will effectively be able to veto any portrayal they don't like. This could impact biographies, documentaries, and other forms of valuable speech that involve depicting real people.
In addition to the lawsuit against EA, the EFF has also been involved in a case where a citizen journalists' group filed a federal lawsuit against a Massachusetts community-access television company for falsely convincing YouTube to take down video clips of city government meetings.
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Citizen journalists sue a TV company for censorship
Citizen journalists from Channel 781 have filed a federal lawsuit against a Massachusetts community-access television company, Waltham Community Access Corp. (WCAC), for convincing YouTube to take down video clips of city government meetings. The lawsuit was filed in the U.S. District Court for Massachusetts by Channel 781, an association of citizen journalists founded in 2021 to report on Waltham, MA, municipal affairs via its YouTube channel. The lawsuit alleges that WCAC's misrepresentation of copyright claims under the Digital Millennium Copyright Act (DMCA) led YouTube to temporarily deactivate Channel 781's channel, making its work disappear from the internet. This occurred just five days before an important municipal election, according to the suit.
Josh Kastorf, a co-founder of Channel 781, stated that WCAC knew it had no right to stop people from using video recordings of public meetings but asked YouTube to shut them down anyway. The Electronic Frontier Foundation (EFF), which is representing Channel 781 in the lawsuit, has emphasized that copyright's fair use doctrine protects important free expression against the threat of ruinous lawsuits. This case highlights the vulnerability of citizen journalists to censorship and the abuse of copyright claims to restrict access to information.
In another case involving a citizen journalist, Priscilla Villarreal, the Supreme Court revived a lawsuit against Laredo, Texas officials who jailed her for asking a police officer to confirm facts about a high-profile suicide and a fatal car accident. Villarreal, an independent journalist, sued the police and prosecutors for violating her First and Fourth Amendment rights. The case has significant implications for free speech, a free press, and government accountability.
While these cases specifically involve citizen journalists, it is worth noting that celebrities and artists have also been engaged in First Amendment lawsuits. For example, performance artists Karen Finley, John Fleck, Holly Hughes, and Tim Miller sued the National Endowment for the Arts (NEA) after being denied fellowships due to a "decency and respect" clause, which they alleged was unconstitutional. They were successful at the district court and court of appeals level. Additionally, the Electronic Frontier Foundation has asked the Supreme Court to apply the First Amendment to speech about celebrities, arguing against the expansion of the "right of publicity" that gives celebrities veto power over creative works depicting or referencing them.
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EFF sues to protect artistic expression about celebrities
The Electronic Frontier Foundation (EFF) has filed a lawsuit to protect artistic expression about celebrities. The lawsuit argues that the First Amendment should shield creative expression from right-of-publicity claims. The right of publicity is an offshoot of state privacy law that gives individuals the right to limit the public use of their name, likeness, or identity for commercial purposes. While a limited version of this right is understandable, it has expanded beyond its original scope. Today, it covers any speech that "evokes" a person's identity, potentially affecting any artistic work based on real people.
The lawsuit specifically challenges the "transformative use" test applied by California courts, which considers whether the work transforms the identity or likeness of the celebrity. The EFF argues that this test is deeply flawed and burdens First Amendment rights. Valuable forms of expression, such as biographies, documentaries, and artistic works, often involve depicting real people accurately. If the transformative use test is upheld, it will become increasingly difficult to create such works without the subject's permission.
The EFF has also highlighted the inconsistency in how courts apply the First Amendment to right-of-publicity cases. They have filed amicus briefs in support of TV studios, Internet platforms, and computer game publishers, advocating for robust free speech protection. The organization believes that celebrities should not have a veto right over creative works that depict or reference them.
The lawsuit is a response to a case where actor Olivia de Havilland sued FX, claiming that their television series "Feud" infringed on her right of publicity. The trial court ruled in de Havilland's favor, but the California Court of Appeal rejected her claims, stating that the First Amendment protects creative works about celebrities, regardless of whether they are factual or fictional.
The EFF's lawsuit aims to protect artistic freedom and ensure that the First Amendment safeguards speech about famous individuals. By challenging the expansion of the right of publicity and inconsistent court rulings, the EFF seeks to uphold the rights of artists, authors, and creators to express themselves freely without undue restrictions.
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Celebrities gain veto power over their depictions in art
In recent times, celebrities have gained more power to limit the public use of their names, likenesses, or identities through the expansion of the "right of publicity". This right of publicity is an offshoot of state privacy law, and while originally intended to prevent the use of a person's name or likeness for commercial purposes without their consent, it has expanded far beyond that. Now, it covers just about any speech that “evokes” a person’s identity.
The Electronic Frontier Foundation (EFF), together with the Organization for Transformative Works and the Comic Book Legal Defense Fund, has filed a brief asking the Supreme Court to reverse this trend and ensure that the First Amendment protects speech about famous people. They argue that all kinds of valuable speech, such as biographies or documentaries, involve depicting real people as accurately as possible, and should be protected by the First Amendment.
The EFF also highlights the impact of the Ninth Circuit's "transformative use" test, which could make it harder to create artistic works based on real people without their permission. This could effectively give celebrities a veto over any portrayal they don't like.
The expansion of the right of publicity and the potential impact on free speech have been highlighted by cases such as Hulk Hogan's lawsuit against Gawker Media. In that case, Hogan was awarded $140 million (later settled at $31 million) for the publication of a sex tape, with the jury rejecting Gawker's arguments that the tape was newsworthy and protected under the First Amendment. This case demonstrated that celebrities can, in certain circumstances, persuade a jury that their right to privacy outweighs the freedom of the press, even when the published material is true.
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Frequently asked questions
Hulk Hogan, Gawker Media, Robert Mapplethorpe, Andres Serrano, Karen Finley, John Fleck, Holly Hughes, and Tim Miller.
In 2016, Hogan sued Gawker Media over a sex tape, arguing that his right to privacy outweighed the freedom of the press. Hogan was awarded $140 million in damages, later settling on $31 million, and the case put Gawker out of business.
The four performance artists successfully sued the National Endowment for the Arts (NEA) at the district court and court of appeals level. They challenged the "`decency and respect` clause" that had been used to deny them fellowships after their artwork caused a furor on Capitol Hill.
The First Amendment protects freedom of speech, freedom of religion, freedom of the press, the right to assemble, and the right to petition the government.
The First Amendment protects speech about celebrities, including biographies, documentaries, and artistic works. However, celebrities have increasingly used the "right of publicity" to limit the public use of their names, likenesses, or identities for commercial purposes. This has given them veto power over creative works that depict or reference them.
