Defamation, Privacy, & Right of Publicity

Right of Privacy

William Prosser enunciated four categories that are included within a personal right to privacy;

  1. Protection against intrusion into one’s private affairs;
  2. Avoidance of disclosure of one’s embarrassing private facts;
  3. Protection against publicly placing one in a false light in the public eye; and
  4. Remedies for appropriation, usually for commercial advantage of one’s name or likeness.

A right of privacy claim has three elements: the use of one’s name or image (1) in an identifiable manner, (2) without consent, and (3) in situations in which the invasion benefits the wrongdoer. 

If you believe your right to privacy has been infringed, contact us now for a consultation!

In Michigan, there are three available right of privacy actions. Their elements are as follows;

The elements of this claim are the following:

  1. the existence of a secret and private subject matter,

  2. a right possessed by the plaintiff to keep that subject matter private, and

  3. that defendant, without consent, obtained information about that subject matter through some method objectionable to a reasonable person.

It is not necessary that the information be revealed or made available to others in order for there to be an invasion of privacy.

The elements of this claim are the following:

  1. the intentional public disclosure of private information about the plaintiff that is not already a matter of public record or otherwise open to the public,

  2. that was highly offensive to a reasonable person, and

  3. that was of no legitimate concern to the public.

It is not necessary that the disclosure be made to the general public. It is sufficient if the disclosure is made to one or more persons such as fellow employees, club members, church members, family, neighbors or others whose knowledge of the facts would be embarrassing to the plaintiff.

The elements of this claim are the following:

  1. a disclosure to the general public or to a large number of people,

  2. of information that was highly objectionable to a reasonable person, which attributed to plaintiff characteristics, conduct, or beliefs that were false and placed plaintiff in a false light, and

  3. the defendant must have had knowledge of or acted in reckless disregard as to the falsity of the disclosed information and the false light in which the plaintiff would be placed.


Right of Publicity

The right of publicity is essentially that which is outlined in number four of Prosser’s four categories of privacy above. It is mainly, but not always, reserved for celebrities and is the right to be free from commercial appropriation. One should be able to decide when and where their likenesses is used and to be compensated when it is.

Generally, in order to bring a claim of right of publicity one must first develop a property interest in their likeness, which is why it is mainly, but not always, used for celebrities and public figures.

Michigan recognizes the common law rights to privacy and publicly, but has not enacted statutes, making it all the more necessary to consult a knowledgeable attorney.

If your likeness is being used without your permission or you have been accused of violating someone’s right of publicity, contact us now for a consultation!


In Michigan, the elements of a defamation claim are:

  1. a false and defamatory statement concerning the plaintiff;
  2. an unprivileged publication to a third party;
  3. fault amounting at least to negligence on the part of the publisher; and
  4. either actionability of the statement irrespective of special harm (defamation per se) or the existence of actual harm caused by the publication.

Defamation per se exists if the communication is false and imputes a criminal offense or lack of chastity. Unlike in many other states, defamation regarding one’s business or profession is not defamation per se in Michigan.

Michigan courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, opinion and fair comment privileges, wire service defense and the fair report privilege.

Slander is spoken or oral defamation; libel is written defamation.

Special rules apply to public figures and officials so contacting an experienced attorney when facing or alleging defamation accusations is crucial! Contact us now!

Lanham Act

Another remedy available to those whose image or brand is misappropriated is Section 43(a) of the Lanham act which provides broad protection against false representation likely to cause public confusion about origin and sponsorship.  This section states: “Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

If your image or brand has been misappropriated or you have been accused of such, call us!

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Email: wewin@kerrylawpllc.com

Tel:(734) 263-1193

Address: 214 S. Main St. Ste 200
                 Ann Arbor MI, 48104
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