Joe Brown was rock climbing last month. He slipped and fell but caught his rope and managed to hold on for 10 minutes, swinging free, until other climbers were able to pull him to safety. A weekly paper, The Moon, ran an article including quotations and thoughts attributed to Brown about the incident. Twenty of the article’s 30 paragraphs included quotations and thoughts attributed to Brown, indicating Brown was scared but brave. However, The Moon had not interviewed Brown. The reporter included material attributed to Brown to make the story more dramatic. Brown sued The Moon for (a) appropriation and (b) false light. Is Brown likely to win? Why or why not?

What will be an ideal response?

Brown will not win his suit for appropriation. Appropriation is the use of a person’s name, picture, likeness, or (maybe) voice for commercial or trade purposes without permission. However, when any of these are used in the nonadvertising part of a mass medium, courts generally will not find appropriation. Here, even though the story may not have been entirely accurate, it ran in the “news” columns, and therefore likely will not be found to be appropriation. Brown may win a false light suit. In addition to publication (in the newspaper) and identification (Brown’s name was used), a false light plaintiff must show that the material is highly offensive to a reasonable person. (Argue whether it would or would not be.) Also, most courts require false light plaintiffs to prove actual malice (knowledge of falsity or reckless disregard of truth or falsity). Here, like the Cantrell v. Forest City Publishing Co. case in the Supreme Court, fabricated quotations and thoughts attributed to a person not interviewed by the paper would be proof that the paper lied—it knew that the quotes and thoughts were made up. Therefore, Brown could prove actual malice. No defense would be applicable in this case.