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Appropriation of Plaintiff’s Name or Likeness

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Appropriation of Plaintiff’s Name or Likeness for Commercial Purposes:
The unauthorized use of the plaintiff's name or likeness for commercial purposes by the defendant.

To prove a prima facie case of appropriation of plaintiff’s name or likeness for commercial purposes, the plaintiff must show that the defendant used his name or likeness for commercial purposes without being authorized to do so. See Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790 (1995). See also Fairfield v. American Photocopy, 138 Cal. App. 2d 82 (1955). The plaintiff must also prove causation.

Please note that if the plaintiff is not a user of the product that his likeness appears on and the advertisement for the product harms the plaintiff’s reputation, the plaintiff may also have a cause of action for defamation. For example:

Bernard is a devout Catholic. A picture of Bernard is used to advertise a brand of male contraceptives. In such a situation Bernard will have a cause of action for appropriation of his likeness. He may also have a cause of action for defamation since, as a devout Catholic, his association with a brand of contraceptives may diminish his reputation in the eyes of his community.

Some jurisdictions have extended protection beyond name and likeness to include other features associated with the plaintiff as well. For example, some jurisdictions will now protect the plaintiff’s voice, catch phrases and trademark habits.

For ordinary people, the unauthorized use of their name or likeness is actionable as an invasion of privacy and the plaintiff will be able to bring a tort action for appropriation of his likeness. However, if the plaintiff is a celebrity, the use of his name and likeness has a clear commercial value and thus, he would be entitled to damages for the appropriation of his likeness under a tort theory and also for the violation of his right of publicity under an intellectual property theory. 

As with the other intrusion torts, causation is essential for a viable cause of action here.

The defense to a suit for appropriation is newsworthiness. That is to say, if the plaintiff is a newsworthy figure, publication of his name or likeness is not actionable so long as the use is not for business or advertising purposes.

Thus, showing movie clips of a recently deceased actor is considered newsworthy and, thus, not actionable. Please note as well that newspapers that place pictures of newsworthy people on the front page of their papers are insulated from liability, even if they place the pictures on the front page of their newspapers for the “commercial purpose” of selling more newspapers, so long as the picture is there for some newsworthy purpose.

Damages will be measured based on the plaintiff’s stature in the eyes of the public. If the plaintiff is a public figure, he can recover damages for the value of the use of his name or likeness. For private plaintiffs, emotional harm is recoverable along with other general damages.