The Tort of Appropriation

Consequences and Avoidance Strategies

In the age of the internet, successful marketing and advertising requires businesses to be able to immediately capture the attention of potential customers. Often, this can be accomplished by using a familiar face or voice in advertising material. Whether it is a celebrity talking about their favorite hamburger or an NBA player’s picture on a box of cereal, such endorsements tend to play a role in the marketing success of a product or service. However, when a person’s identity is used without their permission, what may have seemed like an innocent use of someone’s image can quickly turn into a lawsuit.

Misappropriation and the Right of Publicity

The “right to privacy” and its protection from government intrusion was a foundational tenet of America’s inception; its protection from private actor’s intrusion has been a fundamental legal principle in the United States since as early as the late 19th century.[1] Embedded in such principle is the tort of “misappropriation”, or the unauthorized use of a person’s identity for another’s benefit.[2] Although this right to privacy typically applies to any person,[3] those who are arguably most harmed from such practices are celebrities and public figures. In the context of celebrities, public figures and others who generate economic value from their identity, the “right of publicity” is the legal principle which aims to protect such valuable traits from unauthorized uses.[4] In protecting such assets, various states have passed right of publicity statutes, such as California’s Celebrities Rights Act which also affords posthumous rights for deceased celebrities and public figures.[5]

What is Protected?

Attributes such as a person’s name, voice, signature, photograph, and likeness are those traits which are specifically protected under law.[6] However, courts often analyze the use of any of these features in a wide-reaching manner. For instance, the use of a person’s name applies not just to someone’s legal name, but also to pseudonyms and aliases.[7] Additionally, of these characteristics, courts often interpret “likeness” using the broadest of definitions. In one instance, using the “readily identifiable” standard, a court found that a sufficiently detailed drawing could fall under the “likeness” category.[8] This “readily identifiable” test is included in California’s Celebrities Rights Act and provides that “a person shall be deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.”[9]

What is Prohibited?

Misappropriation is the unauthorized use of a person’s identity for “exploitative purposes”, which is generally defined as “advertising purposes or for the purposes of trade.”[10] Such exploitative purposes are further laid out in California’s right of publicity statute, which prohibits the unauthorized use of another’s identity in connection with “products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services.”[11]

Whether a use is for “exploitative purposes” is often a subject of contention between parties. As was the case when Jewel Foods ran a full-page advertisement congratulating Michael Jordan on being inducted in the Naismith Memorial Basketball Hall of Fame in 2009 which resulted in Jordan subsequently suing Jewel Foods for violations of his right of publicity.[12] The court sided with Jordan in finding that the inclusion of the “Jewel-Osco” logo along with the conspicuously placed marketing slogan in the congratulatory advertisement was sufficient to be considered a commercial or exploitative use.[13] In yet another contentious use in 2019, a lawsuit was brought against Fiji Water for a right of publicity violation.[14] In this case, Fiji Water had posted a meme[15] which featured a cardboard cutout of Kelly Steinbach, who was seen holding a tray of Fiji Water bottles throughout the 2019 Golden Globe Awards.[16]

Consequences

In addition to the risk of being dragged into a potentially costly and lengthy litigation proceeding, remedies for misappropriation and the violation of one’s right of publicity can have substantial consequences. One such example occurred in the In re NCAA Student-Athlete Name & Likeness Licensing[17] class action, where college athletes had sued a videogame developer for the unauthorized use of the athletes’ names and likenesses, which ultimately purportedly settled for $40 million in favor of the college athletes.[18]

One key form of recovery in a misappropriation action is the disgorgement of the defendant’s wrongfully earned profits.[19] Additional types of remedies are often available, particularly in California where the right to publicity is a paramount concern to celebrities and public figures alike. In support of the significance of such assets, California law provides that plaintiffs are not only permitted to pursue and recover damages for violations of both the common law and statutory right of publicity,[20] but in cases where the defendant is found to have engaged in fraudulent or malicious conduct punitive damages and attorneys’ fees may also be recoverable.[21]

Avoidance Strategies

Using a person’s identity without their consent can result in considerable liability. However, there are certain types of uses which fall outside the scope of misappropriation. One of the key misappropriation exemptions or exceptions is a use that is made in connection with a newsworthy or public interest matter.[22] Particularly, uses that are made in connection with news, public affairs, sports and political campaigns are ones that, in some jurisdictions, do not require consent.[23] Although such uses may not be immune from defamation or other potential causes of action.[24]

Another form of use which often arises in misappropriation claims are certain types of creative uses which tend to be protected by the First Amendment.[25] In some jurisdictions, commentary, criticism, satire, and parodies fall under such exempted uses.[26] Meanwhile, some courts have ruled that a creative use of another’s identity may not constitute misappropriation if such use is transformative, looking to whether the new work merely supersedes the objects of the original creation, or instead adds something new with a further purpose or different character which alters the first with new expression, meaning, or message.[27] However, the ideal situation is likely to avoid having to support an argument for “transformation” altogether and maintain originality in advertising.