Joe Dickerson & Associates, LLC v. Dittmar

Brief Fact Summary. PI published an article about an alleged fraud perpetrated by someone he was investigating; the perpetrator sued the PI, claiming that he profited from use of her likeness.

Synopsis of Rule of Law. To prevail on a claim for invasion of privacy by appropriation of one’s name or likeness, you must prove: a) the defendant used the plaintiff’s name or likeness; b) the use of the plaintiff’s name or likeness was for the defendant’s own purposes or benefit (commercially or otherwise); c) the plaintiff suffered harm; and d) the defendant caused the harm incurred.

Facts.  Defendant Joe Dickerson & Associates LLC (and individually Joe Dickerson) was hired to investigate Plaintiff Dittmar during a custody dispute. During the course of his investigation, Defendant noticed impropriety related to Plaintiff’s bearer bonds, so he reported the same to the authorities and Plaintiff was convicted of felony theft of the bonds. Defendant published a newsletter called “The Dickerson Report†which was sent to various law enforcement agencies and law firms containing articles about fraud investigations, tips for avoiding fraud, information about upcoming conferences, etc. In a certain article, Defendant discussed Plaintiff’s case as one where 100% recovery of the value of the stolen assets was obtained. The article mentioned Plaintiff by name and included her photograph in the article on the front page of the newsletter.

Plaintiff sued Defendant on various theories, including invasion of privacy by appropriation of another’s name or likeness, as well as defamation and outrageous conduct. The trial court granted summary judgment to Defendant on all claims, and rejected the appropriation claim because Colorado did not explicitly recognize the claim, and even assuming that it was recognized, no evidence was provided that Plaintiff’s name or likeness had any value. The court of appeals affirmed that the plaintiff must prove her likeness had value to prevail on the appropriation claim.

Issue.  Whether the tort of invasion of privacy based on appropriation of another’s name or likeness requires evidence that a plaintiff’s name has an exploitable value?

Held. No, overruling a previous element of the claim which required proof that defendant sought to take advantage of value attached to a plaintiff’s name or likeness. [Note, the court upheld summary judgment for Defendant, finding that the article was constitutionally protected speech under the First Amendment.]

Discussion. Originating in an article by Warren and Brandeis, the right of privacy remedy was created, whereby a plaintiff could recover for personal injuries such as mental anguish and injured feelings resulting from appropriation of her name or likeness. The court notes that various jurisdictions have had issues dealing with analyzing the right of privacy, using overreliance on Prosser’s emphasis on property-like aspects of the tort, where he combined two distinct types of injury (personal and commercial), which are now known in some jurisdictions as a right to privacy (personal) and right of publicity (commercial). Other jurisdictions provide relief for both under the same cause of action under a right of privacy. The status in Colorado of the right was undetermined prior to the case, and given widespread adoption, the court now holds that Colorado recognizes the tort of invasion of privacy by appropriation of one’s likeness or name.

Based on comments in the 2nd Restatement of Torts, Colorado jury instructions included 5 elements to prove an appropriation claim—one being that defendant sought to take advantage of the value attached to plaintiff’s name or likeness. However, as noted above, there is a difference between a personal and a commercial injury in these cases—and the Restatement improperly combines the two distinct injuries. In a personal context, the value of a plaintiff’s identity is not relevant to determine whether she is entitled to damages. Thus, such element is omitted from the Colorado appropriation claim, and the elements listed above (under synopsis of rule) are included. Given the evidence, then, Plaintiff sufficiently alleged sufficient facts to satisfy each element.

Despite Plaintiff meeting her burden, Defendant still prevailed at trial because his use was deemed to be constitutionally protected speech. Plaintiff argued that the use was purely commercial, to help advertise Defendant. To determine whether Defendant’s use was for a primarily “commercial†(not privileged) or “noncommercial†(privileged) purpose, the court noted that a profit motive does not transform a publication regarding a matter of public concern into commercial speech. In order to be actionable, the use of plaintiff’s identity must be more directly commercial than simply being printed in a periodical that operates for profit (as most newspapers and magazines are for profit enterprises). Here, Defendant’s publication related to a matter of public concern (Plaintiff’s conviction), and it did not matter that it was in a private newsletter—because newsworthiness does not depend on the type of publisher.