Also known as: appropriation of name and likeness · appropriation of likeness · misappropriation of name or likeness · right of publicity · misappropriation of likeness
Written by attorneys — see sources below.
A privacy tort imposing liability when a defendant uses another person's name or likeness for commercial advantage without consent. The plaintiff holds a property interest in controlling the commercial exploitation of identity. Liability arises from the unauthorized appropriation itself and does not require proof of falsity or reputational harm.
Cole, a retired quarterback, learns that a league merchandising subsidiary is selling posters showing his face, jersey number, throwing pose, and last name. His prior licensing agreement expired five years earlier and he never granted a new release. Cole sues for appropriation. The court denies the motion to dismiss because the subsidiary used his recognizable identity for its own commercial sales without consent.
Johnny Carson discovers a company selling portable toilets under the slogan "Here's Johnny." The company chose the phrase solely to evoke Carson's famous late-night introduction and attract customers. Carson sues for appropriation of his identity. The court holds that the company exploited an identifying characteristic associated with Carson for commercial gain without permission.
John W. Carson has hosted “The Tonight Show” on NBC five nights a week since 1962 and appears as an entertainer in night clubs and theaters around the country. From the time he began hosting the program, he has been introduced each night with the phrase “Here’s Johnny,” a method of introduction first used for him in 1957 when he hosted a daily television program for ABC. The phrase “Here’s Johnny” is generally associated with Carson by a substantial segment of the television viewing public. In 1967 Carson first authorized use of the phrase by an outside business venture, permitting it to be used by a chain of restaurants called “Here’s Johnny Restaurants.” In 1970 Johnny Carson Apparel, Inc. was formed to manufacture and market men’s clothing to retail stores. Carson, who serves as president and owns twenty percent of its stock, licensed the company to use his name and picture, which appear on virtually all of its products and promotional material. He also consented to use of the phrase “Here’s Johnny” on labels and in advertising. In 1977 Apparel granted a license to Marcy Laboratories to use the phrase as the name of a line of men’s toiletries. The phrase has never been registered by appellants as a trademark or service mark. Here’s Johnny Portable Toilets, Inc., a Michigan corporation engaged in renting and selling portable toilets, began operations in 1976. Its founder was aware at the time he formed the corporation that “Here’s Johnny” was the introductory slogan for Carson on “The Tonight Show.” He coupled the phrase with a second slogan, “The World’s Foremost Commodian,” to make a play on words. Shortly after appellee went into business, Carson and Apparel brought suit in the United States District Court for the Eastern District of Michigan alleging unfair competition, trademark infringement under federal and state law, and invasion of privacy and publicity rights, seeking damages and an injunction. After a bench trial the district court issued a memorandum opinion and order in 1980 that served as its findings of fact and conclusions of law and ordered dismissal of the complaint.
View caseA television station films and airs Hugo Zacchini's entire fifteen-second human cannonball act without consent. The broadcast allows viewers to see the complete performance that Zacchini normally charges admission to witness. Zacchini sues under state right-of-publicity law. The Supreme Court holds that the First Amendment does not bar recovery because the station appropriated the economic value of the performance itself.
Hugo Zacchini performs a "human cannonball" act in which he is shot from a cannon into a net some 200 feet away, with each performance occupying some 15 seconds. In August and September 1972, Zacchini was engaged to perform his act on a regular basis at the Geauga County Fair in Burton, Ohio. He performed in a fenced area, surrounded by grandstands, at the fair grounds, and members of the public attending the fair were not charged a separate admission fee to observe his act. On August 30, a freelance reporter for Scripps-Howard Broadcasting Co., the operator of a television broadcasting station, attended the fair carrying a small movie camera. Zacchini noticed the reporter and asked him not to film the performance, and the reporter did not do so on that day. On the instructions of the producer of the station's daily newscast, the reporter returned the following day and videotaped the entire act. This film clip, approximately 15 seconds in length, was shown on the 11 o'clock news program that night, together with favorable commentary. Zacchini then brought this action for damages against Scripps-Howard Broadcasting Co. He alleged that the station showed and commercialized the film of his act without his consent. Such conduct was an unlawful appropriation of his professional property. The trial court granted summary judgment for the broadcaster. The Court of Appeals of Ohio reversed. The Supreme Court of Ohio gave judgment for the broadcaster. The United States Supreme Court granted certiorari.
View caseUniversal Pictures continues to license Bela Lugosi's likeness as Count Dracula in new merchandise and films years after his death. Lugosi's heirs sue claiming the studio appropriated his name and likeness for commercial profit. The court holds that the right of publicity does not descend to heirs under California law and therefore the heirs have no claim.
Bela Lugosi and Universal Pictures Company, Inc. concluded an agreement in September 1930 for the production of the film Dracula in which Lugosi contracted to and did play the title role. Paragraph 4 of the agreement granted Universal the right to photograph and exploit in connection with the photoplay any and all of the artist's acts, poses, plays and appearances and the right to use and give publicity to the artist's name and likeness in connection with the advertising and exploitation of the photoplay. Lugosi died in 1956. Commencing in 1960 Universal entered into many licensing agreements which authorized licensees to use the Count Dracula character in connection with the sale of commercial merchandising products such as plastic model kits, masks, posters, candy dispensers, T-shirts, and beverage stirring rods. The licensing agreements specifically authorized the use of Lugosi's likeness from his portrayal of Count Dracula in Dracula and Dracula's Daughter. On February 3, 1966, Lugosi's widow Hope Linninger Lugosi and surviving son Bela George Lugosi filed a complaint against Universal alleging that they were the heirs of Bela Lugosi and that Universal had appropriated property which they had inherited from Lugosi and which was not embraced in paragraph 4 of the 1930 agreement. The complaint sought damages, an accounting of profits, and an injunction against further licensing without their consent. The trial court found that the essence of the thing licensed by Universal was the uniquely individual likeness and appearance of Bela Lugosi in the role of Count Dracula. It concluded that Lugosi had a protectable property right in his facial characteristics and individual manner of likeness and appearance as Count Dracula that descended to his heirs under his will. The court awarded plaintiffs $53,023.23 in damages for licensing agreements executed after February 3, 1964, and issued a permanent injunction against further unauthorized licensing of Lugosi's likeness as Count Dracula on commercial products. Universal appealed. The Supreme Court of California granted a hearing, conducted an independent study of the issues, and adopted the opinion of the Court of Appeal, Second Appellate District, as its own after appropriate deletions and additions.
View caseNo. Appropriation protects the plaintiff's interest in controlling commercial use of identity. It is complete upon nonconsensual commercial exploitation and does not require any false statement or reputational injury.
Supporting sources
No. A person's interest in controlling commercial use of identity survives retirement. The claim turns on whether the defendant used the identity for its own benefit without current consent, not on the plaintiff's employment status.
Supporting sources
No. Identifiability is enough. If viewers can recognize the plaintiff from voice, distinctive pose, jersey number, or other characteristics, the use satisfies the appropriation element.
Supporting sources