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The fourth category of privacy torts is misappropriation. A person is liable for invasion of privacy if he or she uses the name or likeness of another for commercial purposes without permission. The issue usually arises when the name or photograph of a famous person is used without consent in an advertisement or other promotional activity.
For example, entertainment power couple Jennifer Lopez and Marc Anthony sued the makers of a baby stroller for misappropriation, claiming the company used a photograph of the couple with a Silver Cross baby carriage to help sell the product on its web site and in various print and electronic media and newsletters.
A caption beneath the photo read, “Jennifer Lopez will be the envy of Long Island when she’s out and about with her new baby twins, thanks to the two beautiful Onyx Black Silver Cross Balmoral prams she has taken for the pair (see above) … Little Maximiano and Emelina (Max & Emme) will enjoy the greatest comfort in the iconic British classics that Jennifer ordered . . . .” The company settled the suit for an undisclosed amount of money.
This example clearly involves the unauthorized use of a name and likeness for commercial benefit. Other uses, however, are not misappropriations, including the publication or broadcast of names and pictures in news reports of political, social and entertainment events. The newsworthiness defense in this context is broad and has been held to protect all of the following:
the reproduction and distribution of large segments of a commercially staged Elvis Presley press conference;
the inclusion of several postal workers’ pictures in campaign literature;
creation of a poster of presidential candidate and comedian Pat Paulsen, even though it was being sold for profit;
publication of a photo of actress Ann-Margaret partially nude;
the use of a picture on the cover of a book or magazine if the subject is a newsworthy event or reasonably related to a newsworthy subject inside the publication;
the use of previously published or broadcast news and photos to promote the publishers’ and broadcasters’ own publications and programs, including poster reproductions of a newspaper’s front page (photos and footage not previously disseminated may also be used for this advertising purpose); and
a newspaper’s 1-900-survey to determine the favorite member of a wildly popular band.
Because unauthorized use is an element of misappropriation claims, consent is a complete defense. Below is additional information about consent, as well as other factors online content providers should take into account when considering the use of a person’s name or likeness on their web sites:
Consent to use a person’s name or likeness for commercial purposes should be in writing. Oral consent may be unsatisfactory. Consent agreements, signed by competent adults, should state the parties to the agreement and the scope and duration of the terms and should provide for payment. A name or photo should not be used commercially after such consent has expired.
The unauthorized use of a person’s name or identity for commercial purposes includes the use of sound-alikes, so you may not be protected if you use just a famous person’s voice.
The newsworthiness defense does not protect the broadcast of a performer’s entire act.
Cover photographs used to illustrate articles inside the publication may create liability for misappropriation if they are used in a knowingly false manner to increase the publication’s sales. That was the ruling of a federal appellate court in California that considered a television actor’s misappropriation lawsuit against Playgirl magazine, which used the actor’s picture and suggestive headlines on the magazine cover to convey the false message that the actor was depicted nude inside, when his sole appearance was actually a head-and-shoulders photograph showing him fully dressed.
In addition to misappropriation claims, use of a famous person’s photograph may also implicate copyright concerns.
The Citizen Media Law Project provides additional information about special problems relating to misappropriation that may arise in the context of social networking web sites.