Joe Dickerson & Associates, LLC v. Dittmar
34 P.3d 995 (2001)
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Rule of Law:
The use of a person's name and likeness in a publication is privileged under the First Amendment and not actionable as an invasion of privacy by appropriation if the content concerns a matter of legitimate public concern, such as a crime and subsequent conviction, even if the publisher has a commercial motive.
Facts:
- Joe Dickerson & Associates, LLC was hired to investigate Rosanne Marie Dittmar during a child custody dispute.
- In his investigation, Dickerson discovered that Dittmar had stolen bearer bonds from her employer, a brokerage firm, and reported this to the authorities.
- As a result of Dickerson's report, Dittmar was charged with and convicted of felony theft of the bonds.
- Dickerson published a newsletter, "The Dickerson Report," which was distributed to law enforcement agencies, financial institutions, and law firms.
- An article in the newsletter described Dickerson's role in investigating Dittmar's theft, detailed the crime, mentioned her conviction, and included her name and photograph on the front page.
Procedural Posture:
- Rosanne Marie Dittmar sued Joe Dickerson & Associates, LLC in a Colorado trial court for several torts, including invasion of privacy by appropriation of name or likeness.
- The trial court granted summary judgment in favor of Dickerson, holding that Dittmar failed to present evidence that her name or likeness had any value.
- Dittmar, as appellant, appealed the summary judgment to the Colorado Court of Appeals (an intermediate appellate court).
- The Court of Appeals reversed the trial court's decision, finding that genuine issues of material fact existed that precluded summary judgment.
- Dickerson, as petitioner, successfully sought a writ of certiorari from the Supreme Court of Colorado (the state's highest court) to review the Court of Appeals' decision.
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Issue:
Does the publication of a person's name and photograph in a newsletter article detailing their crime and felony conviction constitute an actionable invasion of privacy by appropriation of name or likeness, or is such a publication protected by the First Amendment as newsworthy speech?
Opinions:
Majority - Justice Bender
No, the publication does not constitute an actionable invasion of privacy because it is privileged speech under the First Amendment. The court holds that the tort of invasion of privacy by appropriation of another's name or likeness is cognizable in Colorado, with the elements being: 1) the defendant used the plaintiff's name or likeness; 2) the use was for the defendant's own purposes or benefit; 3) the plaintiff suffered damages; and 4) the defendant caused the damages. The court explicitly rejects the requirement that a plaintiff seeking only personal damages must prove her name or likeness has pre-existing commercial value. However, the court finds that a First Amendment privilege protects publications concerning matters of legitimate public concern. Because the commission of a crime and resulting conviction are unquestionably matters of public concern, the defendant's article is newsworthy. Even though the newsletter might have served a commercial purpose for Dickerson's firm, the speech is primarily noncommercial because its content relates to a newsworthy event. Therefore, the publication is privileged, and the appropriation claim fails as a matter of law.
Concurring - Justice Coats
Yes, I agree with the judgment that the claim fails, but for a different reason. The court should not have formally adopted the tort of appropriation or reached the First Amendment privilege issue in this case. The claim should fail because the use of Dittmar's name and picture in the context of her felony conviction does not implicate any value deserving of protection by this tort. The tort is designed to protect against the appropriation of positive values like reputation or prestige, none of which are at issue when publishing facts about a criminal conviction. By defining the tort so broadly as to not require the appropriation of any such value, the majority unnecessarily creates a need for a broad First Amendment privilege to limit its scope.
Analysis:
This decision formally establishes the tort of invasion of privacy by appropriation in Colorado, clarifying its elements for claims seeking personal damages by removing the 'pre-existing value' requirement. More significantly, it solidifies the strength of the 'newsworthiness' privilege, affirming that truthful reporting on criminal matters is protected speech even when published by non-traditional media with a potential commercial motive. This ruling sets a high bar for plaintiffs alleging appropriation when the publication relates to matters of public record or legitimate public concern, such as their own criminal conduct, thereby prioritizing First Amendment protections over privacy interests in such contexts.
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