Appropriation in General
- Appropriation -- Use of a person's name, likeness or identity
for trade or advertising purposes without consent.
It is the oldest, longest-recognized of the privacy torts (since early
1900s). It is the most legally concrete of the privacy torts, which means
it is the most likely for the plaintiff to win.
Movies and works of fiction typically can't be held liable for appropriation.
Defenses to the claim of Appropriation:
- Newsworthiness: can use the name, likeness or identity in news
stories, even though selling newspapers. This has been broadly defined
to include blatant attempts to gain circulation, which means the news media
also can later use the name or photo for advertising the publication or
before to promo "coming next week," as long as it doesn't imply endorsement.
- Consent. For example, gameshows require participants to take
the first step to enter contests. In Jeppson v. United TV (1978),
a Utah man won on a claim of appropriation because a television station
called him on the air after picking his name out of a telephone book as
part of a dialing for dollars promo. He claimed the television station used his
name on the air without his consent.
- Individual Not Identified.
- Roberson v. Rochester Folding Box Co. (1902): a picture
of Abby Roberson was plastered over town on a flier advertising a baking flour
company, which used the picture without permission or compensation. The
family claimed that the unwanted attention caused the girl severe embarassment
and humiliation. The N.Y. Court of Appeals said there was no law against it.
- In response, the New York legislature created the first appropriation
law (statutory right of privacy) in 1903.
- Pavesich v. New England Life Insurance Co. (1905):
an insurance company used a person's picture to sell insurance without
the person's permission. The Georgia Supreme Court recognized a common law
right of privacy that had been violated by the unauthorized commercial
use of someone's identity. It was the first state court to recognize such
Some states recognize two types of appropriation:
- Private People's Right of Privacy: using their name or picture without consent would cause embarrassment, shame, emotional distress, but this wouldn't hold for people who seek out and depend on publicity. They don't suffer emotional harm
from public attention.
- Celebrity's Right of Publicity: unauthorized usage causes loss of money
(recognized in more than 20 states).
Differences in two:
Private people can't claim loss of money because they don't normally make money off of their image, but a celebrity can. Celebrities can't claim publicity causes shame because they already are thoroughly publicized.
Zacchini v. Scripps Howard Broadcasting (1977): provides the precedent for right to publicity.
The Court said the First Amendment doesn't protect a broadcaster who took a performer's entire act and showed it without consent as news. Hugo Zacchini, the human cannonball, was performing at state fair. He denied consent to film to free-lance TV reporter. The fair owner asked the reporter back to tape it and the entire 20-second act was broadcast on local television.
In some states, including Oklahoma, the right to publicity can be inherited and bartered.
Catchphrases, nicknames, pictures and voices can be appropriated. In other words, using them without the person's consent is a violation.
"Look-alike" and "sound-alike" cases always revolve around the intended use of the image. It isn't by coincidence that people are using the image to advertise their product. So what constitutes a name or a likeness?
Carson v. Here's Johnny Portable Toilets (6th Cir. 1983):
Recognized catchphrase as identifiable attribute considered part of celebrity's
right of publicity.
- The slogan was considered an integral part of Carson's
identity. Portable toilet company owner knew it was Carson's phrase
and selected it for that reason.
- Trial court threw out Carson's complaint, saying there was no intention to deceive the public into thinking Carson endorsed the toilets, or that Carson had lost money.
- Appeals court agreed on those
counts, but it said the trial court's interpretation of the right of publicity
was too narrow. "If the celebrity's identity is commercially exploited, there has been an invasion of the right whether his name or likeness is used."
What constitutes an identifiable attribute that will be considered part of a person's right of publicity? Is it necessary that the potential audience will interpret the use as an endorsement?
- Midler v. Ford Motor Co. (9th Cir. 1988): After Bette Midler refused to do the ad, the ad agency hired one of her backup singers to do one of Midler's songs in her voice. Midler won the case.
- White v. Samsung Electronics of America, Inc. (9th Cir. 1992):
Samsung VCR ad had blonde robot flipping cards on a game show. White claimed
it was her likeness and WON. Flipping cards on a game show was her identity.
Some entertainment uses, such as Elvis impersonators have been found to be appropriation, but parody and satire, such as on Saturday Night Live, are protected.
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