The first type of claim is invasion of privacy through misappropriation of name or likeness. The second is the violation of the right of publicity. The right of publicity is the right of a person to control and make money from the commercial use of his identity.
Elements of a Claim for Unlawful Use of Name or Likeness
A plaintiff must generally establish three elements to sue for an unlawful use of name or likeness:
- Use of a Protected Attribute: The plaintiff must show that the defendant used an aspect of the plaintiff’s identity that is protected by the law, like their name or likeness (distinguishable aspects of a person’s identity);
- The Use was for an Exploitative Purpose: The plaintiff must show that the defendant used the plaintiff’s name, likeness, or other personal attributes for commercial, personal, or other exploitative purposes. The use of someone’s name or likeness for news reporting is not exploitative.
- The Plaintiff did not give Consent: The plaintiff must establish that he or she did not give permission to use their likeness.
Defenses to Using the Name or Likeness of Another
Similar to the tort of defamation, consent is a defense to a legal claim for misappropriation of name or likeness or violation of the right of publicity. If the plaintiff gave oral or written consent to the use of name or likeness of another then the defendant will not be liable for the publication. However, the publication must not exceed the consent. Further, the plaintiff that originally had the consent can revoke that consent anytime before the use of their name or photograph takes place.
The second defense is the statute of limitations has expired. This term describes the maximum amount of time the plaintiff can wait before bringing a lawsuit. In using the name or likeness of other cases, the statute of limitations ordinarily runs from the date of first publication of the offending facts. It is common to be anywhere from one to three years.
A third defense is use of name or likeness for news or commentary. A defendant will generally not be held liable for using someone’s name, likeness, or other personal attributes in connection with reporting on matters of public interest.
Damages for Using the Name or Likeness of Another
One who has established a cause of action for invasion of his or her privacy is entitled to recover damages. The three most common are:
- The damage or harm to the defendant because of the publication.
- The mental distress suffered if it is of a kind that normally results from such a publication.
- The special damages experienced by the defendant because of the publication. These special damages include damages for loss of reputation or community status, damages for physical injury or demonstrable pecuniary loss, and consortium loss by the spouse.
The law of using the name or likeness of another is complex. If you believe that you are a victim of this tort, contact the experienced attorneys at Minc Law to evaluate your case. The laws regarding using the name or likeness of another vary depending on the state. Call today (216) 373-7706 to find out more information.