Appropriation of Name or Likeness

Appropriation of name or likeness, the oldest and most widely recognized branch of the invasion of privacy tort, imposes liability for unauthorized use of another’s name, likeness, or other identifying characteristics. Although the tort applies whenever the defendant, for his or her benefit (pecuniary or otherwise), appropriates the plaintiff’s identity, the great majority of appropriation cases involve ‘‘commercial’’ uses like advertising or merchandising.

Although initially understood as protecting a dignitary or autonomy interest, this tort is now seen as protecting an economic interest as well. In a significant number of jurisdictions, individuals have a ‘‘right of privacy,’’ which protects them from the indignity and embarrassment of having their personalities commercialized without their consent, and a ‘‘right of publicity,’’ which affords them exclusive control of the commercial value of their identities. Whereas the former is a purely personal right, the latter is assignable by contract and, in many jurisdictions, descendible.

The appropriation tort’s impact on the news media is limited because a news disseminator is generally privileged to use a person’s name or image in connection with an article or program on a matter of public interest. This privilege, however, does not apply if there is no discernible relationship between the plaintiff and the content of the news report, if the report’s content is deliberately fabricated, or if the report is a disguised advertisement. The use of a person’s identity in commentary, entertainment, and creative works is ordinarily privileged as well. However, in Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), the Supreme Court held that the First Amendment does not bar liability for the unauthorized television news broadcast of a performer’s ‘‘entire act.’’

MICHAEL MADOW

References and Further Reading

  • Keeton, W. Page et al. Prosser and Keeton on the Law of Torts. St. Paul, MN: West Publishing, 1984. 
  • Madow, Michael, Private Ownership of Public Image, 81(1) California Law Review 125–240 (1993). 
  • McCarthy, J. Thomas. The Rights of Publicity and Privacy. Eagen, MN: Thomson West, 2005. 
  • Nimmer, Melville, The Right of Publicity, Law & Contemporary Problems 19 (Winter 1954): 203–223. 
  • Prosser, William L., Privacy, California Law Review 48 (1960): 3:383–423. 
  • Restatement (Second) of Torts, Sec. 652C (1976). 
  • Warren, Samuel D. and Brandeis, Louis D., The Right to Privacy, Harvard Law Review 4 (1890): 5:193–220. 

Cases and Statutes Cited

  • Zacchini v. Scripps–Howard Broadcasting Co., 433 U.S. 562 (1977) 

See also Invasion of Privacy and Free Speech; Right of Privacy

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