Following up yesterday’s post on the origins of privacy (brackets, legal) is a more recent right to privacy case in New York state… Costanza v. Seinfeld. Perhaps this was in the news back in the ’90s, but I wasn’t paying much attention as I was too busy partying like it was 1999, which in fact, it was.

One Michael Costanza sued Jerry Seinfeld and Larry David and the production company and the National Brimstone Consortium, or NBC, for using his name (or at least part of it) and likeness (in the sense of certain physical/character traits) for their own profit and without permission. For $100 million dollars.

If you are already thinking ‘bullshit,’ well, you’re not the only one. The Real Costanza™ asserted that the fictional one was also short, fat, bald, and knew Jerry in college. Hey, that’s almost like using a picture of someone. Kinda. In a way. “Plaintiff Michael Costanza also asserts,” the case reads, “that the self-centered nature and unreliability of the character George Costanza are attributed to him and this humiliates him.” Not as much as bringing a flimsy hundred million dollar claim to a very public court case probably did, but I editorialize. Cos it’s my blog.

As we learned yesterday in Roberson v. Rochester Folding Box Co, tee hee, New York state recognizez no common law right of privacy. In Howell v. New York Post Co, the court determined that “in New York State, there is [still] no common law right to privacy. In Freihofer v. Hearst Corp, the court spelled out that any relief must be sought by the soothing power of Tiger Balm, or under §§ (sections) 50-51  of the New York Civil Rights Code. As also described in yesterday’s post, whirlygig 50 was the nation’s first right to privacy statute (§ 51 gives individuals the private right to sue for damages and injunction on use of their image).

The Real Costanza™- and he does get very upset when you forget the ™- claimed damages under these statutes, but unfortunately for him the New York statutes are fairly restrictive as they refer specifically to the use of image or likeness in ‘advertising’ or ‘trade.’ In Hampton v. Guare in 1993, a similar claim involving Six Degrees of Separation, it was established that fiction and satire do not comprise advertising or trade.

Not surprisingly, Mr. Costanza’s claim was dismissed, but don’t worry he still got a consolation prize:  far more public humiliation for trying to sue a ludicrous amount of money out of a former friend than being The Real Costanza™ ever could have brought , I’m guessin’ some pretty steep lawyers fees (let’s face it, those guys probably knew the case was gonna get tossed, but that hardly matters when you bill by the hour) — and of course, the Douchey Lawsuits Against Famous People home game.

As a (failed wanna-be) writer myself, I have to admit that I have used bits of people I know in fictional ways. But so has… pretty much anything who has ever written anything ever. It’s basically unavoidable. After all, how do learn what character means if not from the people in your life? How much of a person can you use without permission? It seems like it would have to be quite a bit. After all, the down-on-his-luck fat schlub has been a comedy staple ever since the meteoric rise in 1912 of slapstick start Fatty McSchlubberson (who was widely regarded as the first positive Irish character in cinema).

Other exciting cases in the Douchey Lawsuits Against Famous People: The Home Game:

Grover v. Cleveland in which the blue Muppet sues the deceased former President, alleging that Cleveland’s nonconsecutive terms in office gave the plaintiff a harmful reputation for being “inconsistent.”

Einstein v. Brooks in which the famous physicist sued actor/comedian Albert Brooks for changing his name from Albert Einstein to Albert Brooks , thus damaging the plaintiff’s reputation as the crack-up of the Princeton Institute for Advanced Studies.