Joe Dickerson & Associates, LLC v. Dittmar

• Decision Date: 19 November 2001
• Citation: 34 P.3d 995
• Docket Number: 00SC115
• Parties: JOE DICKERSON & ASSOCIATES, LLC, a Colorado limited liability corporation; and Joe H. Dickerson, individually, Petitioners, v. Rosanne Marie (Brock) DITTMAR, Respondent.
• Court: Colorado Supreme Court

34 P.3d 995

JOE DICKERSON & ASSOCIATES, LLC, a Colorado limited liability corporation; and Joe H. Dickerson, individually, Petitioners, v. Rosanne Marie (Brock) DITTMAR, Respondent.

No. 00SC115.

Supreme Court of Colorado, En Banc.

November 19, 2001.

Harris, Karstaedt, Jamison & Powers, P.C., A. Peter Gregory, Michael Brice Sullivan, Englewood, CO, Attorneys for Petitioners.

Richard J. Lesch, Denver, CO, Attorney for Respondent.

Justice BENDER delivered the Opinion of the Court.

I. INTRODUCTION

This appeal involves the tort of invasion of privacy by appropriation of another's name or likeness. The defendant published an article in a newsletter, identifying the plaintiff by name and including her picture, which detailed his investigation of the plaintiff's theft of bearer bonds and her subsequent criminal conviction. The plaintiff sued the defendant claiming that her privacy was invaded by appropriation of her name and likeness.

Ruling on the defendant's motion for summary judgment, the trial court held that even if the tort were cognizable in Colorado, the plaintiff's appropriation claim failed because she presented no evidence that her name or likeness had any value.

On appeal, the court of appeals reversed on other grounds. Dittmar v. Dickerson & Assocs., 9 P.3d 1145, 1147 (Colo.App.1999). That court, after finding this tort cognizable, ruled that there were genuine issues of material fact regarding other aspects of the tort, including the purpose of the publication and whether the use of the name and likeness had value to the defendant. We agree that the tort is cognizable in Colorado. However, we reverse the court of appeals' holding because the defendant's use of the plaintiff's name and likeness in the context of an article related to her crime and conviction is newsworthy and, therefore, privileged.

We hold that the tort of invasion of privacy by appropriation of another's name or likeness is cognizable under Colorado law. The elements of this tort are: (1) the defendant used the plaintiff's name or likeness; (2) the use of the plaintiff's name or likeness was for the defendant's own purposes or benefit, commercially or otherwise; (3) the plaintiff suffered damages; and (4) the defendant caused the damages incurred. A plaintiff's claim of invasion of privacy by appropriation of her name and likeness will not succeed, however, if the defendant's use of the plaintiff's name and likeness is privileged under the First Amendment. In this case, the defendant is entitled to summary judgment as a matter of law because we find that the defendant's use of the plaintiff's name and likeness in the context of an article about the plaintiff's crime and felony conviction is a matter of legitimate public concern and is, therefore, privileged. Hence, we reverse the court of appeals and return this case to that court with directions to reinstate the trial court's order granting summary judgment to the defendant.

II. FACTS AND PROCEEDINGS BELOW

Defendants Joe Dickerson & Associates, LLC and Joe Dickerson were hired during a child custody dispute to investigate plaintiff Rosanne Marie (Brock) Dittmar. During the course of this investigation, Dickerson noticed inconsistencies in the way Dittmar came to possess certain bearer bonds. He reported the results of his investigation to authorities. Thereafter, Dittmar was charged with and convicted of felony theft of these bonds.

Dickerson publishes a newsletter called "The Dickerson Report," which is sent free of charge to law enforcement agencies, financial institutions, law firms, and others. This report contains articles about financial fraud investigations, tips for avoiding fraud, activities of private investigator boards, information about upcoming conferences, and the like. Dickerson ran a series of articles in the report under the heading "Fraud DuJour." This column included such articles as "Fraud DuJour — Wireless Cable Investments," "Fraud DuJour — Prime Bank Instruments," and the article at issue here, "Fraud DuJour — Five Cases, 100%+ Recovery."

In this article, Dickerson related the role his firm played in five cases in recovering 100% — and in one case more than 100% — of the value of stolen assets. Dittmar's case was discussed first. Dickerson's article detailed how Dittmar, who worked as a secretary at a brokerage firm, stole a customer's bearer bonds from her place of employment and cashed them for personal use. In addition, the article described Dickerson's investigation of Dittmar, the fact that the jury convicted Dittmar of theft, and how the court ordered her to pay restitution to the theft victim.¹ This article appears on the front page of The Dickerson Report, mentions Dittmar by name, and includes her photograph.

Dittmar sued Dickerson on a number of tort theories including defamation, outrageous conduct, and invasion of privacy by appropriation of another's name or likeness. The trial court granted summary judgment for Dickerson on all claims. With respect to Dittmar's claim for invasion of privacy by appropriation of another's name or likeness, the only claim relevant to this appeal, the trial court noted that Colorado has not explicitly recognized this tort. The trial court granted Dickerson's motion for summary judgment because, even assuming the tort was cognizable under Colorado law, Dittmar "present[ed] no evidence that her name or likeness had any value." The trial court noted that, under the definition of the tort in the Second Restatement of Torts, appropriation requires more than mere publication of the plaintiff's name or likeness:

The value of a plaintiff's name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity.

Restatement (Second) of Torts § 652C, cmt. d (1976).

Dittmar appealed the trial court's dismissal of her appropriation claim. The court of appeals agreed with the trial court that this tort requires the defendant to appropriate certain values associated with the plaintiff's name or likeness: "In order for liability to exist, the defendant must have appropriated to his or her own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff's name or likeness." Dittmar, 9 P.3d at 1146 (citing Restatement (Second) of Torts § 652C, cmt. c). The court of appeals concluded, however, that the plaintiff raised issues of material fact regarding different aspects of the tort, namely the purpose of the publication and whether the use benefited Dickerson. Id. at 1147. These issues of fact, the court of appeals reasoned, precluded summary judgment in favor of Dickerson. Hence, that court reversed the trial court's grant of summary judgment. Id. at 1148.

Dickerson petitioned this court for certiorari on three issues: (1) whether the tort of invasion of privacy based on appropriation of another's name or likeness is cognizable under Colorado law; (2) if so, whether an appropriation claim requires evidence that the plaintiff's name has an exploitable value; and (3) whether the article constituted constitutionally protected speech.²

We agree with the court of appeals' recognition of this tort but we disagree that a plaintiff must provide evidence of the value of her name and likeness when she seeks only personal damages. Because we find that the defendant's publication of the plaintiff's name and likeness in the context of an article about her crime and felony conviction is privileged under the First Amendment, we hold that the defendant is entitled to summary judgment as a matter of law.

III. ANALYSIS

A. Overview of the Appropriation Tort

In 1890, an influential law review article outlined the contours of the tort of invasion of privacy. Samuel D. Warren & Louis D. Brandeis, The Right To Privacy, 4 Harv. L.Rev. 193 (1890). Warren and Brandeis suggested that increased abuses by the press required a remedy that would protect private individuals from mental distress and anguish. Id. at 195-96. They proposed that the right of privacy would protect a person's rights in their appearance, sayings, acts, and personal relations. Id. at 213. To Warren and Brandeis, the right of privacy did not involve property so much as the "more general immunity of the person — the right to one's personality." Id. at 200-01 & 207. In short, they desired to protect the individual's right "to be let alone." Id. at 205.

Over the years, almost every state has recognized, either statutorily or by case law, that one way that an individual's privacy can be invaded is when a defendant appropriates a plaintiff's name or likeness for that defendant's own benefit.³ While the exact parameters of this tort of invasion of privacy by appropriation of identity vary from state to state, it has always been clear that a plaintiff could recover for personal injuries such as mental anguish and injured feelings resulting from an appropriation. See, e.g., Reed v. Real Detective Publ'g Co., 63 Ariz. 294, 162 P.2d 133, 139 (1945); Fairfield v. Am. Photocopy Equip. Co., 138 Cal.App.2d 82, 291 P.2d 194, 197 (1955); Annerino v. Dell Publ'g Co., 17 Ill.App.2d 205, 149 N.E.2d 761, 762 (1958); J. Thomas McCarthy, The Rights of Publicity and Privacy, § 1:7 (2d ed.2000).

There has been a great deal of debate, however, over the ability of a plaintiff to recover for pecuniary loss resulting from an unauthorized commercial exploitation of her name or likeness. Courts initially had difficulty reconciling how a celebrity, well-known to the public, could recover under the misleading heading of "privacy." See, e.g., O'Brien v. Pabst Sales Co., 124 F.2d 167, 170 (5th Cir.1941); Pallas v. Crowley-Milner & Co., 334 Mich. 282, 54 N.W.2d 595, 597 (1952). Suc...