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 · grounded in primary & secondary sources — see 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.
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A 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.
Universal 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.
No. 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.
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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.
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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.
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…only to an individual’s name but to a nickname or stage name as well. Hirsch , supra, 280 N.W.2d at 137; Comment, The Tort of Misappropriation of Name or Likeness Under Wisconsin’s New Privacy Law, 1978 Wis.L. Rev. 1029, 1046; Prosser, Privacy, 48 Cal.L. Rev. 383, 404 (1960). Hirsch required that the name clearly identify the wronged person.…