Reality Bites: The Downfall of New York's Misappropriation Claim in the World of Reality Television

Abstract

Love it or hate, reality television is here to stay. Whether it is an inside look into the world of crime fighting, a survival competition on a deserted island, or a 24-hour look at how seven strangers can live together, reality television has taken an entire generation by storm. Today, it is one of the most prevalent forms of television on the networks and audiences keep asking for more. Though reality television is entertainment, and sometimes even fictionalized, its roots in documentary filmmaking cannot be ignored. Reality television is capturing and chronicling the society we live in, just as documentary films have always done. It plays a vital role in commenting and documenting issues that affect our society. Reality television, as an expressive, creative and socially valuable genre, deserves the same legal protections that have been long been granted to traditional forms of media, entertainment and art. As cameras continue to capture our every moment, more and more lawsuits are being slapped against television producers. Recently, there has been an influx of lawsuits involving invasion of privacy by misappropriation, a claim that is meant to protect the commercial value of one's persona when an image is appropriated for advertising or trade purposes. Historically, courts have held expressive and newsworthy publications and broadcasts exempt from misappropriation claims if they are deemed to have a high enough public interest and if the image's use is related to the story. But in the hard-to-define realm of reality television, courts are struggling to apply this real relationship test. This Note argues that the test that courts use to analyze misappropriation claims should be abolished. Instead, courts should broadly exempt from the misappropriation claim all communicative and expressive uses that are not for advertising or trade purposes.