Key point 4-04. Many states recognize "invasion of privacy" as a basis for liability. Invasion of privacy may consist of any one or more the following: (1) public disclosure of private facts; (2) use of another person's name or likeness; (3) placing someone in a "false light" in the public eye; or (4) intruding upon another's seclusion.
A New Jersey court ruled that a school that sold videos of a student play did not invade the privacy of the students.
A private school provided education for students in kindergarten through eighth grade. At the beginning of each school year, the parents executed and submitted forms to the school consenting to the videotaping, photographing or sound recording of their children "in classroom, playground, auditorium activities and productions." The form provided in part that "this consent is given with the knowledge that these might appear in the media or be used in conjunction with exhibits, publicity and public relations."
The school sponsored a play in which 80 students participated. The play lasted one hour. On the night of the play, an announcement was made that individuals could purchase copies of the videotape through the PTA. One of the student actors ("Emily") saw the videotape of the performance, but did not want a copy because she had tripped during the performance.
Emily's mother sued the school for invasion of privacy as a result of the use of her daughter's performance for commercial gain and the "mental anguish" that she and Emily had suffered as a result of the sale of the videos. She also claimed that the school had "exploited" the students, and that it was her obligation as a parent to protect students from what could happen in the future. She also noted that she did not want the tape "out there" in case Emily "became older and got a name for herself" because it was not one of her best performances.
The trial court dismissed the invasion of privacy claim on the ground that the school acted with "a charitable, rather than commercial purpose." The mother appealed.
A state appeals court noted that invasion of privacy "encompasses four distinct kinds of invasion of four different interests of the plaintiff." These include:
- Intrusion on another's physical solitude or seclusion, as by invading his or her home, illegally searching, eavesdropping or prying into personal affairs.
- Public disclosure of private facts, such as by making public private information about another.
- Placing another in a false light in the public eye in a manner that would be objectionable to the ordinary reasonable person.
- Appropriation of another's name or likeness for commercial gain.
These four separate kinds of invasion of privacy "have almost nothing in common except that each represents an interference with the right of the plaintiff to be left alone."
Appropriation of another's likeness for commercial gain
In this case, the mother asserted that the school had committed the fourth kind of invasion of privacy—the appropriation of her daughter's likeness for commercial gain as a result of the sale of the videotapes of the school play. The court described this kind of invasion of privacy as follows:
One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his [or her] privacy." Restatement (Second) of Torts § 652C. Accordingly, to establish a case for invasion of privacy by appropriation of likeness, a plaintiff must establish: (1) the defendant appropriated the plaintiff's likeness, (2) without the plaintiff's consent, (3) for the defendant's use or benefit, and (4) damage … [The courts] have consistently required plaintiffs to show that defendants received a commercial benefit through the unauthorized use of plaintiff's likeness.
The court rejected the mother's claim that all she had to establish to prevail on her invasion of privacy claim was mental anguish over the videotaping of her daughter's play. Instead, she was required to show that the school used Emily's likeness for a commercial purpose. The mere act of recording the school play was not enough to establish an appropriation of likeness claim.
"Incidental" use of another's image
The court noted that "there is no appropriation of likeness when the use of an individual's image is merely 'incidental' to the total presentation." In other words, the school's sale of recordings of the play could not amount to an appropriation of Emily's likeness for commercial gain unless that gain was directly associated with Emily's likeness. The fact that she was one of 80 students depicted on the recording, and that few if any persons purchased the video because of her likeness, defeated any invasion of privacy claim.
The court rejected the mother's claim that every unauthorized recording amounts to an unlawful appropriation of another's likeness. The court concluded:
The record is devoid of any evidence that the school used Emily's likeness to obtain a commercial or trade benefit, or that her personal appearance in the play was used to any greater degree than other students in the performance. Nor did the mother produce any evidence to show how she or Emily was damaged as a result of the videotaping. The mother alluded to the possibility that the tape could hurt Emily in the future. However, she cites no legal authority to support her apparent position that the damage element can be satisfied on such contingent grounds.
Because the mother failed to establish that the school used Emily's image in a manner that furthered a commercial or trade purpose, that Emily's likeness was used in anything more than in an incidental manner, and that she was damaged by the school's conduct, we affirm the trial court's dismissal of this case.
What this means for churches
This case is of special relevance to churches, since so many churches publish images of members in pictorial directories, brochures, slides, or on web sites. As this case illustrates, such photos may expose a church to invasion of privacy claims. The use of someone's likeness without permission has been deemed to be an invasion of privacy by some courts. This risk goes way up if (1) the image is used for commercial purposes (in a money making venture, even if by a nonprofit entity), or (2) you use the image in connection with demeaning text (for example, an image of an adolescent in an article on victims of child abuse).
If neither of these two factors is present, then the risk of invasion of privacy is reduced significantly, but not eliminated. A church can easily address this by obtaining express or implied consent. Express consent is written consent by a parent. Implied consent may occur if a church, for example, inserts notices in the church bulletin or newsletter a few times each year advising members that the church will use candid photos of various church activities on its website from time to time, and members not wanting their photos depicted (or those of their children) should so inform the church office. The church office can then create a list of persons whose photos are not to be displayed. However, any photo of children should contain no personally identifiable information.
Another legal risk associated with the use of images of church members is the posting of images of minors on a church's website with personally identifiable information. This becomes globally circulated among the pedophile community, and allows child molesters to solicit and seduce these children. Jeffries v. Whitney E. Houston Academy 2009 WL 2136174 (N.J. Super.A.D. 2009).