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Invasion of Privacy: Appropriation

The world of media has changed. Handheld content creation is ubiquitous. Personal media is easily accessible via social networks. Content is aggregated, and sharing and commentary are encouraged.

In a span of minutes, an appropriated photograph or video may go "viral," exposing private moments to millions around the world. Appropriation refers to taking something for unauthorized use. It is a type of invasion of privacy tort. Privacy law torts are common law (court-developed) civil wrongs that have been recognized with the evolution of judicial law.

For better or worse, sometimes little is done to regulate content to prevent appropriation. After all, it is difficult to police the process of content creation and use of private information. This can affect a lot of people, including:

  • Content creators
  • Content distributors
  • Consumers
  • Victims of appropriation

The right to privacy can be enforced through a claim of invasion of privacy. An invasion of privacy lawsuit can be based on different claims or causes of action. In common law states, the right of privacy causes of action include:

  1. Intrusion of Solitude (or Intrusion Upon Seclusion or Private Affairs)
  2. Appropriation of Name or Likeness
  3. Public Disclosure of Private Facts
  4. False Light (also see defamation, which is similar but separate)

The restatement of torts breaks down appropriation as: One who appropriates for their own use or benefit the name or likeness of another, is subject to liability to the other for invasion of his privacy.

Personal privacy is also important in other areas of the law. For example, the Fourth Amendment's provisions against unreasonable searches and seizures touches on privacy law in criminal cases. In that context, the Supreme Court has even protected against the government's intrusion into one's personal life where there is a reasonable expectation of privacy. This means a reasonable person, or a person of ordinary sensibilities, will, in certain circumstances, rightfully demand not to be bothered in their private life.

In this article, we examine common law tort claims that are only relevant to civil appropriation lawsuits brought between private parties. Some jurisdictions (states) have codified their invasion of privacy laws through legislation. In those states, legal action can be enforced through statutes rather than common law.

Invasion of Privacy: Appropriation of a Name or Likeness

An individual may have a cause of action (claim) for invasion of privacy when their identity has been used without permission. That includes misappropriation of their:

  • Name
  • Likeness
  • Other personal attributes

For example, a business may use an individual's personal photograph without consent to advertise its product. Here, the defendant's conduct would involve an unpermitted commercial purpose. Alternatively, a person may use a plaintiff's name and personal information without consent for professional gain.

To succeed in an appropriation lawsuit, you must prove that:

  1. You didn't grant permission for the use of your identity;
  2. The defendant utilized some protected aspect of your identity; and
  3. The defendant used your identity for their immediate and direct benefit

The law varies state-by-state on what constitutes a protected aspect of identity. For example, California law expressly protects a person's:

  • Name
  • Likeness
  • Voice
  • Signature
  • Photograph

Florida statutory law is more limited on identity, protecting only a person's name, likeness, portrait, and photograph. The last element involving "benefit" is typically commercial, as in the use of a personal photograph for advertising. Some states, such as Florida, limit liability to situations involving commercial benefit. In other states, liability may attach even if the defendant appropriated the identity for noncommercial benefit, such as impersonation for professional gain.

State statutory law differences are frequently minimized by case law. But these differences nonetheless can affect the strength and scope of your claim.

Appropriation and the Right of Publicity

For some people, identity carries with it fame or celebrity and, thus, greater commercial value. For such public figures, there is an additional right of publicity that prevents unauthorized commercial uses of their identity. The right of publicity is a very similar cause of action to appropriation, and many courts and legal commentators continue to muddle the two together. Despite the trend toward unification, some differences remain. The right of publicity can only be asserted against a defendant who utilizes the plaintiff's identity for commercial benefit.

The right of publicity is generally viewed as a license that can be assigned to another person. In limited cases and depending on the state, it may even survive death. Unlike appropriation, the value of the right of publicity is tied to celebrity. A plaintiff must prove their fame or celebrity in order to make a right of publicity claim.

You may want to use the identity of a celebrity, living or dead, to promote your business. In such a case, you should determine the current owner of the right of publicity and obtain permission.

Defenses to an Invasion of Privacy Appropriation Claim

There are several defenses available to negate an invasion of privacy appropriation lawsuit, including the following:

News and Commentary

If a person's identity has been appropriated in connection with reporting the news or for commentary, then the First Amendment shields the defendant from liability. When it comes to matters of legitimate public concern, the case law cuts in favor of defendants.

Courts have also refused to attach liability in cases where identity was appropriated for use in:

  • Books
  • Magazines
  • Newspapers
  • Online forums

The courts have found that these uses fall under the umbrella of "news and commentary."

However, it should be noted that plaintiffs are not entirely without recourse. If the appropriated use bears no reasonable relationship to the news or commentary, the defense will not stand.

Creative Works

Creative works are also exempt from liability for invasion of privacy. The work must contain elements that materially and substantially change the content beyond the appropriated identity. In that way, the work is not a mere vehicle for the appropriation itself. In other words, the creative work must be "transformative," or clearly distinguishable from the personal content that was appropriated.

For example, a photographic work may be transformative and, therefore, exempt from liability, if:

  1. It incorporates the personal photograph of an individual;
  2. It is incorporated into a larger collage of photographs; and
  3. It has been edited for color, contrast, perspective, and other artistic elements

Some states, such as Washington, expressly exempt certain creative works from liability. Other jurisdictions decide whether liability will attach on a case-by-case basis.

Get an Invasion of Privacy Case Review

Perhaps your name or likeness was used against your permission and you need to pursue an appropriation lawsuit. Maybe you have a question about creative works. Whatever your issue may be, an experienced attorney is your best route to an answer. Reach out to a personal injury lawyer who specializes in invasion of privacy cases to learn more.

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