The general nature of a right of privacy is the right of a person to be free from unwarranted publicity or the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities[i].
The unwarranted publication of a person’s name or likeness may constitute the most common means of invasion of the right of privacy. The protection of name and likeness from unwarranted intrusion or exploitation is the heart of the law of privacy[ii].
The restatement of torts provides that one who appropriates to his/her own use or benefit the name or likeness of another is subject to liability to the other for invasion of his/her privacy.
The common law right is not limited to the appropriation of name or likeness. The key issue is appropriation of the plaintiff’s identity. A common law cause of action for appropriation of name or likeness may be pleaded by alleging[iii]:
- the defendant’s use of plaintiff’s identity;
- the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise;
- lack of consent; and
- resulting injury.
However, merely suggesting certain characteristics of the plaintiff, without literally using his/her name, portrait, or picture, is not actionable[iv]. Additionally, to constitute an invasion of the right of privacy, the use of a name or likeness must amount to a meaningful or purposeful use of the name of a person.
A mere incidental commercial use of a person’s name or photograph is not actionable under the Civil Rights Law[v]. Some meaningful or purposeful use of the name is essential to the statutory cause of action. Further, it is a person whose name is used for advertising purposes or for the purposes of trade who has a cause of action.
Tortious liability for appropriation of a name or likeness is intended to protect the value of an individual’s notoriety or skill[vi]. Thus, in order that there may be liability for such appropriation, a defendant must have appropriated to his/her own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff’s name or likeness.
The misappropriation tort does not protect one’s name per se; rather it protects the value associated with that name. Appropriation is not actionable if the person’s name or likeness is published for purposes other than taking advantage of the person’s reputation, prestige, or other value associated with the person. Appropriation occurs most often when the person’s name or likeness is used to advertise the defendant’s product or when the defendant impersonates the person for gain.
Accordingly, a common form of invasion of privacy by appropriation of name or likeness is for advertising purposes. One whose name or likeness is used, without his/her consent, for advertising purposes, has a right to recover for an invasion of privacy under the express terms of a privacy statute. The common law also recognizes a cause of action for invasion of a right of privacy where the defendant uses the plaintiff’s name or picture without permission in advertising the defendant’s product[vii].
A person, firm, or corporation that uses for advertising purposes, or for purposes of trade, the name, portrait, or picture of any living person without having first obtained the written consent of such person, is guilty of a misdemeanor[viii].
The right of a person to be compensated for the use of his/her name for advertising purposes or purposes of trade is distinct from other privacy torts which protect primarily the mental interest in being let alone. Further, the appropriation tort is different since it protects primarily the property interest in the publicity value of one’s name[ix].
[i] Daily Times Democrat v. Graham, 276 Ala. 380 (Ala. 1964).
[ii] Lugosi v. Universal Pictures, 25 Cal. 3d 813 (Cal. 1979).
[iii] Abdul-Jabbar v. GMC, 85 F.3d 407 (9th Cir. Cal. 1996).
[iv] Allen v. National Video, Inc., 610 F. Supp. 612 (S.D.N.Y. 1985).
[v] Moglen v. Varsity Pajamas, Inc., 13 A.D.2d 114 (N.Y. App. Div. 1st Dep’t 1961).
[vi] Remsburg v. Docusearch, Inc., 149 N.H. 148 (N.H. 2003).
[vii] Fergerstrom v. Hawaiian Ocean View Estates, 50 Haw. 374 (Haw. 1968).
[viii] Allen v. National Video, Inc., 610 F. Supp. 612 (S.D.N.Y. 1985).
[ix] Hirsch v. S. C. Johnson & Son, 90 Wis. 2d 379 (Wis. 1979).