Privacy Torts: Appropriation and Right of Publicity

In an era where personal identity is a currency—used to sell products, attract clicks, and build brands—the legal protections against its unauthorized exploitation are critical. Understanding the distinction between the privacy tort of appropriation and the property-based right of publicity is essential for anyone navigating media, advertising, entertainment, or personal rights law. These doctrines serve as the primary shields against having your name, likeness, or persona used for another's commercial advantage without your consent.

The Tort of Appropriation: Protecting Personal Dignity

The tort of appropriation is one of the four classic privacy torts articulated by Samuel Warren and Louis Brandeis and later formalized in the Restatement (Second) of Torts. At its core, appropriation protects an individual's personal dignity and right to be left alone by prohibiting the unauthorized use of another's name, likeness, or other personal identifier for the defendant's own benefit, typically commercial advantage.

This cause of action does not require the plaintiff to be famous. The wrongful act is the violation of personal autonomy—the use of a person's identity as if it were a thing to be taken, often without their knowledge. A classic example is using a photograph of an ordinary citizen in a newspaper advertisement for a bank without their permission, implicitly suggesting their endorsement. The harm is the offense to personal dignity and the loss of control over one's own image. It's important to note that the "benefit" to the defendant need not be monetary profit in a direct sense; it can include attracting attention, promoting a cause, or gaining any other advantage.

The Right of Publicity: Protecting Commercial Value

In contrast, the right of publicity protects the commercial value of a person's identity. It is not grounded in a right to privacy but in a property right—the right to control and profit from the economic value of one's fame, persona, or performance. This tort is primarily invoked by celebrities, athletes, entertainers, and other public figures whose name, likeness, voice, signature, or distinctive style holds significant marketable worth.

The seminal case establishing this distinction is Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. (1953), where the court held that a famous baseball player had a legally protectable "right of publicity" in his photograph that was separate from his right to privacy. The wrong here is not an affront to dignity but the unlawful misappropriation of economic value. For instance, if a company uses a soundalike of a famous singer's voice in a commercial, it has stolen the valuable asset of her recognizable vocal identity, as seen in Midler v. Ford Motor Co. (1988).

Key Distinctions: Privacy vs. Property

While the two torts overlap—both involve the unauthorized use of identity—their foundational principles and requirements create crucial differences. Appropriation is a privacy tort, actionable by anyone, with damages focused on mental distress and injury to feelings. The right of publicity is a property right, typically actionable by those with a commercially valuable identity, with damages calculated based on lost licensing fees or the defendant's unjust enrichment.

This distinction becomes legally significant in several ways. First, defenses differ. Truth is not a defense to appropriation, as the issue is consent, not falsity. Second, the statutes of limitation may vary between injury-to-person (privacy) and injury-to-property theories. Most importantly, the right of publicity, as a property interest, can be freely assigned, licensed, and in many jurisdictions, descend to heirs after death—concepts that do not apply to a personal privacy claim.

Critical Exceptions and Defenses: Newsworthiness and the First Amendment

The most significant limitation on both appropriation and publicity claims is the newsworthiness exception, which is rooted in First Amendment protections for free speech and a free press. Society's interest in information and commentary on matters of public concern generally outweighs an individual's interest in controlling their identity in that context.

This exception broadly protects the use of a person's name or likeness in news reporting, documentaries, biographies, and even entertainment that is expressive and transformative. For example, publishing a photograph of a person involved in a newsworthy event is protected, even without consent. The line is drawn at purely commercial speech, like straightforward advertising. A use is more likely to be protected if it has transformative value—meaning the defendant has added significant creative expression, such as in a parody, fictionalized portrayal, or artistic work, rather than merely exploiting the raw celebrity identity for attention. The Supreme Court's ruling in Zacchini v. Scripps-Howard Broadcasting Co. (1977) carved out a narrow exception, holding that broadcasting an entire human cannonball act was not protected because it appropriated the entire economic value of the performance itself.

Postmortem Rights: Does the Claim Survive?

The treatment of claims after death highlights the core difference between the two torts. The personal tort of appropriation traditionally ends with the death of the individual; you cannot offend the dignity of a deceased person. Conversely, the right of publicity, as a property right, can survive death.

However, state laws vary dramatically. Some states, like California and Tennessee, have robust statutory postmortem rights that protect a celebrity's publicity rights for 70 to 100 years after death, allowing their estate to control and license their image. Other states recognize no postmortem rights at all, or only a very limited common law version. This patchwork creates complex legal issues for national advertisers, film producers, and merchandisers who must navigate the laws of the state where the deceased personality was domiciled, as well as where the infringement occurred.

Common Pitfalls

1. Assuming "Use" Equals "Liability": A common mistake is believing any unauthorized use of identity is actionable. The newsworthiness exception and First Amendment protections are powerful shields. Using a person's likeness in a news article, historical analysis, or transformative expressive work is often protected, even if it causes commercial harm or personal offense.
2. Confusing the Two Torts in Pleading: Failing to properly distinguish between an appropriation (privacy) claim and a publicity (property) claim can lead to a dismissed lawsuit. A non-famous plaintiff alleging only commercial harm may fail under a publicity theory, while a celebrity alleging only emotional distress might not optimize their potential recovery. Complaints should clearly plead the correct legal theory supported by the specific facts.
3. Overlooking State Law Variations: Treating publicity law as uniform is a major error. The existence, duration, and scope of the right—especially concerning postmortem rights, the need for a signed written transfer, or the protection of attributes like voice or style—differ by state. Legal strategy must be tailored to the applicable jurisdiction's statute and case law.
4. Misjudging the "Commercial Advantage" Requirement: Not every use in a for-profit venture qualifies. A television show or magazine sells advertisements, but its primary content is typically protected expression. The key question is whether the identity was used specifically to directly advertise a product or service, or was it part of the expressive content itself? The latter is far more likely to receive First Amendment protection.

Summary

• Appropriation is a privacy tort that protects all individuals from the unauthorized use of their name or likeness for another's benefit, primarily to safeguard personal dignity and autonomy.
• The Right of Publicity is a property right that protects the commercial value of a celebrity's or public figure's identity, allowing them to control and profit from its economic exploitation.
• The fundamental distinction lies in the protected interest: privacy (personal offense) versus property (economic loss). This affects who can sue, available damages, assignability, and postmortem survival.
• The newsworthiness exception and First Amendment protections significantly limit both torts, shielding uses of identity in news, expression, and transformative works from liability.
• Postmortem rights for the right of publicity vary widely by state, creating a complex legal landscape where a persona's commercial value may or may not survive its owner.