Haskell v. Stauffer Communications, Inc.
26 Kan.App.2d 541, 990 P.2d 163 (1999)
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Rule of Law:
The publication of a person's name or likeness in a news article concerning a matter of legitimate public interest is privileged under the First Amendment and does not constitute the tort of misappropriation, unless the use is for a commercial purpose beyond the incidental profit of selling the publication.
Facts:
- Posters resembling old-fashioned 'Wanted' notices and bearing a photograph of Derek Haskell appeared in Dodge City.
- The text on the posters mentioned Haskell's practice of carrying unconcealed weapons in public and suggested he should be incarcerated or committed.
- Stauffer Communications, Inc., owner of the Dodge City Globe, published a news article about the appearance of these posters.
- The news article included a photograph of one of the posters featuring Haskell.
- The article clarified that Haskell was not actually wanted by law enforcement, that his actions were legal, and included comments from the local police chief about the situation.
Procedural Posture:
- Derek Haskell sued Stauffer Communications, Inc. in district court for defamation, outrage, and other claims.
- Haskell later amended his petition to add a claim for invasion of privacy, including misappropriation of name or likeness.
- Following a trial, a jury returned a verdict in favor of Haskell on the misappropriation claim, awarding him $2,500 in damages.
- Stauffer Communications, Inc., the defendant, appealed the judgment to the intermediate appellate court, arguing the jury was improperly instructed on the law.
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Issue:
Does a newspaper commit the tort of misappropriation of name or likeness by publishing a newsworthy article that includes a person's photograph, where the only commercial benefit is the sale of the newspaper itself?
Opinions:
Majority - Anderson, J.
No. The noncommercial publication of matters of public interest by a newspaper is privileged and does not give rise to a claim for misappropriation of name or likeness. The court, addressing this issue for the first time in Kansas, adopts two key limitations on the tort of misappropriation widely recognized in other jurisdictions and the Restatement (Second) of Torts. First, the tort is limited to appropriations for a commercial purpose; the incidental profit a newspaper makes from selling copies is not a sufficient commercial use. Second, a 'newsworthiness privilege,' rooted in the First Amendment, protects the publication of matters of legitimate public concern. Here, the article about the posters and Haskell's public carrying of weapons was a matter of legitimate public interest and safety. Therefore, Stauffer Communications' publication was privileged, and the trial court erred by failing to instruct the jury on the commercial use limitation and the newsworthiness privilege.
Analysis:
This decision formally establishes the newsworthiness privilege as a defense to misappropriation claims in Kansas, aligning the state's tort law with the majority of jurisdictions and the Restatement (Second) of Torts. It significantly strengthens First Amendment protections for the press by clarifying that news reporting is distinct from commercial exploitation. The ruling makes it more difficult for individuals who are subjects of news stories to succeed on misappropriation claims, as they must now demonstrate that their name or likeness was used for a direct commercial advantage beyond the publication's routine sales.
