Appropriation

Appropriation, also referred to as misappropriation, is the unauthorized use of a person’s name, photograph, likeness, voice, or endorsement, often for financial gain. Although appropriation may involve speech or communication, the First Amendment does not protect its practice.

Appropriation is related to and is often co-mingled with the “right of publicity.” Some commentators differentiate them, however, on the grounds that the right of publicity applies to individuals (for example, a celebrity) with a proven commercial value to their image or identity, while appropriation pertains to everyone. Appropriation has its roots in the law of unfair competition and has historically been applied when something that cannot be copyrighted, such as a performance, is used without authorization. The terms are often used interchangeably, however, and the Restatement (Second) of Torts (sec. 652C, comment (b) (1977)) includes only a single action for “appropriation of name or likeness,” which includes commercial and noncommercial purposes.

The concept of a right of publicity arose at the start of the twentieth century. New York, for example, adopted the claim by statute in 1905 after the state’s highest court refused to recognize it in Roberson v. Rochester Folding Box Co. (N.Y. 1902). The Georgia Supreme Court recognized the claim in Pavesich v. New England Life Ins. Co. (Ga. 1905). The first court decision to use the term right of publicity was Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. (2d Cir. 1953). Professor Melville B. Nimmer promoted the concept the following year in a seminal article. The Supreme Court upheld the constitutionality of the claim in Zacchini v. Scripps-Howard Broadcasting Co. (1977), which involved the unauthorized broadcasting of the entire “human cannonball” act.

The Second Restatement of Torts, published the year of the Zacchini decision, states that “[o]ne who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy” (sec. 652C; see also Restatement (Third) of Unfair Competition, sec. 46 (1995): “[o]ne who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade is subject to liability for [monetary and injunctive] relief”). The action is now recognized as a common law tort by most states, although some jurisdictions recognize it only for prominent individuals. Several jurisdictions, notably California and New York, have adopted the cause of action by statute. In a few states, the cause of action survives the death of the individual.

For celebrities, courts have allowed “right of publicity” actions for an individual’s image, Grant v. Esquire, Inc. (S.D.N.Y. 1973); name, Parks v. LaFace Records (6th Cir. 2003); persona, White v. Samsung Electronics America, Inc. (9th Cir. 1992), reh’g denied (9th Cir. 1993), cert. denied (1993); and [Page 106] voice, Midler v. Ford Motor Co. (9th Cir. 1988). Courts have also allowed right of publicity claims in cases involving a celebrity’s signature phrase, Carson v. Here’s Johnny Portable Toilets, Inc. (6th Cir. 1983); the persona of a fictional character with which an actor is closely identified, Allen v. Men’s World Outlet, Inc. (S.D.N.Y. 1988); and a race car driver’s automobile, Motschenbacher v. R.J. Reynolds Tobacco Co. (9th Cir. 1974).

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