Douglass V. Hustler Magazine, Inc.: Anatomy of Privacy for a Public Figure in Illinois, 19 J

UIC Law Review Volume 29 Issue 4 Article 17 Summer 1986 Douglass v. Hustler Magazine, Inc.: Anatomy of Privacy for a Public Figure in Illinois, 19 J. Marshall L. Rev. 1053 (1986) Howard L. Teplinsky Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Entertainment, Arts, and Sports Law Commons, Privacy Law Commons, Sexuality and the Law Commons, State and Local Government Law Commons, and the Torts Commons Recommended Citation Howard L. Teplinsky, Douglass v. Hustler Magazine, Inc.: Anatomy of Privacy for a Public Figure in Illinois, 19 J. Marshall L. Rev. 1053 (1986) https://repository.law.uic.edu/lawreview/vol29/iss4/17 This Comments is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. CASENOTES DOUGLASS V. HUSTLER MAGAZINE, INC.:* ANATOMY OF PRIVACY FOR A PUBLIC "FIGURE" IN ILLINOIS Ever since the inception of the common law tort of privacy,' much confusion has existed regarding the scope of the tort's protection. Part of the confusion exists because the tort has evolved from a single concept into four distinct torts.2 The degree of * 769 F.2d 1128 (7th Cir. 1985), petition for cert. filed, 54 U.S.L.W. 3505 (U.S. Jan. 28, 1986). 1. Legal redress for a violation of one's right of privacy was first addressed in an 1890 law review article. Warren and Brandeis, The Right to Privacy, 4 HARV. L. REv. 193 (1890). The now famous article was written in response to unfavorable newspaper reports of Mrs. Samuel Warren's Beacon Hill social events. The final provocation occurred when the local newspapers "had a field day" reporting Warren's daughter's wedding. Mr. Warren then contacted his former law partner, Louis D. Brandeis, and the two began a new chapter in the law. Prosser, Privacy, 48 CALIF. L. REV. 383, 383- 84 (1960). 2. Dean Prosser recognized that the right of privacy evolved from a single concept into four distinct torts: 1) unreasonable intrusion into seclusion; 2) public disclosure of a private fact; 3) false light in the public eye; and 4) appropriation of name or likeness. Prosser, supra note 1, at 389-407. He acknowledged that the four concepts had very little in common. Id. at 389. The one common thread running throughout, however, is that all four protect the plaintiffs right to be left alone. Id. See W. PROSSER & W. KEETON, THE LAW OF TORTS 117 (5th ed. 1984); RESTATEMENT (SECOND) OF TORTS § 652A (1977). See also Trubow, Information Law Overview, 18 J. MAR. L. REV. 815, 818 (1985) (commenting on common law privacy torts impact on communications technology). Unreasonable intrusion into seclusion involves the objectionable intrusion into a person's solitude. Prosser, supra note 1, at 389-92. The intrusion must be objectionable to the reasonable person. Id. Galella v. Onassis, 487 F.2d 986 (2d. Cir. 1973) (photographer's constant harassment of a public figure held to be an intrusion). See, e.g., Pearson v. Dodd, 410 F.2d 701 (D.C. Cir.), cert. denied, 395 U.S. 947 (1969) (tort is complete when information is obtained by improperly intrusive means); RESTATEMENT (SECOND) OF TORTS § 652B (1977); Note, Criminationof Peeping Toms and Other Men of Vision, 5 ARK. L. REy. 388 (1951) (noted before Prosser's article appeared that "peeping Toms" intrude on one's privacy). According to Prosser, a public disclosure of a private fact involves three elements: 1) the disclosure must be public, not private; 2) the facts disclosed must be private; and 3) the matter made public must be highly objectionable to the reasonable person. Prosser, supra note 1 at 392-98. See W. PROSSER & W. KEETON, THE LAW OF TORTS 117 (5th ed. 1984). The Restatement of Torts added a fourth requirement, namely, that the general public must not have a legitimate interest in the information. RESTATEMENT (SECOND) OF TORTS § 652D (1977). The Restatement's definition of false light privacy is: The John Marshall Law Review [Vol. 19:1053 acceptance of the four privacy torts has not been uniform among the states.$ Illinois, for example, has historically recognized only the tort of appropriation.4 In Douglass v. Hustler Magazine, Inc.,' the United States Court of Appeals for the Seventh Circuit for the first time explicitly recognized the existence of the false light tort in Illinois.6 Unfortunately, the Douglass court added to existing confusion about the appropriation tort by failing to distinguish it One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. RESTATEMENT (SECOND) OF TORTS § 652E (1977). See infra notes 53-65 and accompanying text. See also Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974) (false story causing the public to pity the plaintiffs held an invasion of privacy); Time v. Hill, 385 U.S. 374 (1967) (Supreme Court recognition of the false light tort); W. PROSSER & W. KEETON, THE LAW OF TORTS § 117 (5th ed. 1984) (comprehensive examination of false light privacy); Prosser, supra note 1, at 398-401 (written during the early development of the tort and notes similarities to the tort of defamation (see infra note 39)). But see Kalven, Privacy in Tort Law - Were Warren and Brandeis Wrong?, 31 LAW & CONTEMP. PROas. 326, 339-41 (1966) (criticism of false light privacy coexisting with the law of defamation). The fourth privacy tort involves the appropriation of a plaintiff's name or likeness for the defendant's benefit or use. RESTATEMENT (SECOND) OF TORTS § 652C (1977). The interest protected is the individual's exclusive use of his own identity. Id. The unlawful appropriation of one's identity was the first privacy tort that the courts recognized. See, e.g., Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55 (1938). See infra notes 72-80 and accompanying text. See also W. PROSSER & W. KEETON, THE LAW OF TORTS § 117 (5th ed. 1984). See generally Kalven, Privacy in Tort Law - Were Warren and Brandeis Wrong?, 31 LAW & CONTEMP. PROBs. 326, 331 (1966) (an article generally critical of privacy law, but nevertheless supportive of the appropriation tort). 3. The following are jurisdications which have expressly adopted Prosser's four categories: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Idaho, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Mississippi, Missouri, New Hampshire, New Jersey, Ohio, Pennsylvania, South Dakota, Texas, Vermont, and the Virgin Islands. See generally 3 LDRC 50 - STATE SURVEY (H. Kaufman ed. 1984) (survey of defamation and related torts encompassing all fifty states and U.S. territories). 4. Comment, Privacy in Illinois: Torts Without Remedies, 17 J. MAR. L. REV. 799, 818 (1984) [hereinafter cited as Privacy In Illinois]. The privacy tort of appropriation was first recognized in Illinois in 1952. Eick v. Perk Dog Food Co., 347 Ill. App. 293, 106 N.E.2d 742 (1952). In Eick, Justice Schwartz was inspired by the Warren and Brandeis article and, therefore, recognized the right of privacy in Illinois. Id. at 295, 106 N.E.2d at 743. The defendant used a photograph of a blind girl to promote the sale of dog food. Id. at 294, 106 N.E.2d at 743. The court held that the defendant unlawfully appropriated the plaintiff's likeness and, therefore, violated her right of privacy. Id. at 306, 106 N.E.2d at 748. See also Carlson v. Dell Publishing Co., 65 Ill. App. 2d 209, 213 N.E.2d 39 (1965) (acknowledged appropriation tort but denied plaintiff's recovery); Bradley v. Cowles Magazines, Inc., 26 Ill. App. 2d 331, 168 N.E.2d 64 (1960) (limited the recovery in Eick by denying recovery for a mother who read a publication about her son); Annerino v. Dell Publishing Co., 17 Ill. App. 2d 205, 149 N.E.2d 761 (1958) (use of plaintiff's photograph in a story about her husband's murder held to be an invasion of privacy). 5. 769 F.2d 1128 (7th Cir. 1985). 6. Id. at 1133. See infra notes 51-67 and accompanying text. 19861 Douglass v. Hustler Magazine Inc. from the right of publicity.7 In 1974, aspiring actress Robyn Douglass posed nude for freelance photographer Augustin Gregory.' The photographs were to appear in upcoming issues of Playboy Magazine.9 In 1980, Gregory was hired as photography editor of Hustler Magazine." Gregory's portfolio included the nude photographs of Douglass." Lacking Douglass' consent, 2 Hustler published the nude photographs in the January, 1981 issue of the magazine.' 3 7. Id. at 1138-39. See infra notes 68-98 and accompanying text. 8. Douglass, 769 F.2d at 1131. Gregory was a codefendant in the case. In 1974, Douglass posed for Gregory on two occasions. During the first session, Douglass posed nude with another woman. Those pictures were intended for Playboy's "Ripped-Off" pictorial. Douglass posed alone during the second session. Those pictures were intended for Playboy's "Water and Sex" pictorial. Id. at 1131-32. 9. Douglass, 769 F.2d at 1131-32. The "Ripped-Off" pictorial appeared in the March, 1975 issue of Playboy.

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