Also known as: appropriation of name or likeness · appropriation of plaintiff's name or likeness · misappropriation · right of publicity
Written by attorneys — see sources below.
A privacy tort imposing liability when a defendant uses the plaintiff's name or likeness without consent to secure a commercial advantage. The tort protects an individual's property interest in the economic value of personal identity. Recovery is available even without proof of defamation or falsity.
Ava Adebayo discovers that a beverage company has published a full-page ad featuring her name and a summary of her rise from poverty to professional success. The ad promotes the company's product without any permission or compensation. Ava sues for damages based on the unauthorized commercial exploitation of her identity.
Adrian Aguilar learns that a law firm has used his name and photograph in promotional materials highlighting its successful defense of a high-profile misappropriation matter in which he was the complaining witness. The firm never obtained his consent. Adrian brings an action alleging that the firm appropriated his identity for its own commercial gain.
Anthony Arnold finds his name and likeness featured on a website run by a legal ethics commentator that sells subscriptions by promising exclusive coverage of a famous trust-fund misappropriation case in which Arnold was the victim. No consent was given. Arnold sues the commentator for commercial appropriation of his identity.
Amelia Amari, heir to a famous horror actor's estate, discovers that a studio is marketing a new film series that uses the actor's distinctive likeness and character name without any license. The studio profits from the association. Amelia sues for appropriation of the actor's identity rights.
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 caseAudrey Ashton, a reporter whose byline appears on breaking stories, learns that a competing service is publishing her dispatches under its own name to attract subscribers. The service gains commercial value from the misattribution. Ashton asserts a claim for appropriation of her professional identity.
The Associated Press is a cooperative organization incorporated under New York law. Its members are proprietors or representatives of about 950 daily newspapers. It gathers news worldwide through its own correspondents, exchanges with members, and other means at an annual cost of approximately $3,500,000 assessed upon the members. Each member agrees that news received through the service is for exclusive publication in a designated newspaper and place. No other use is permitted. No member shall furnish the news in advance of publication to any non-member. Each member also supplies its local news exclusively to the Associated Press. International News Service is a New Jersey corporation engaged in gathering and selling news to approximately 400 subscribing newspapers under contracts. Its annual operating cost exceeds $2,000,000. The two organizations compete directly in the distribution of news throughout the United States. The newspapers they serve likewise compete in their respective districts. International News Service obtained Associated Press news by copying from bulletin boards and early editions of newspapers published by Associated Press members on the East Coast. It transmitted the material by telegraph to its own western subscribers for publication. It sometimes rewrote the dispatches while using the same facts. It also obtained news before publication by bribing employees of Associated Press member newspapers and by inducing members to violate the by-laws. The bill was filed in the District Court for the Southern District of New York. The District Court granted a preliminary injunction against bribing employees and inducing by-law violations. It declined to enjoin the copying from bulletins and early editions. The Circuit Court of Appeals sustained the existing injunction. On the complainant's appeal, it modified the decree to add an injunction against bodily taking of the news until its commercial value as news had passed. The Supreme Court granted certiorari.
View caseAlice Atkins, a human cannonball performer, watches a television station air her complete fifteen-second act during a news segment without obtaining permission. The station increases its ratings and advertising revenue from the broadcast. Atkins sues for appropriation of the economic value of her performance.
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 caseAppropriation focuses on the defendant's commercial gain from using the plaintiff's identity, whereas public disclosure concerns private facts, intrusion concerns physical or sensory invasion, and false light concerns misleading portrayals.
Many jurisdictions allow recovery of the defendant's profits or a reasonable licensing fee even without proof of specific harm to the plaintiff, because the tort protects the economic value of identity itself.
Supporting sources
Some states treat the right as descendible property that passes to heirs, while others limit the claim to the lifetime of the individual whose identity was used.
Supporting sources
…Co. , 433 U. S. 562 (1977) (ruling that the “actual malice” standard does not apply to the tort of appropriation of a right of publicity). In respondent’s view, and in the view of the Court of Appeals, so long as the utterance was intended to inflict emotional distress, was outrageous, and did in fact inflict serious…