Appropriation Attack

What are the elements of Appropriation?

1. Use of P’s Name or Likeness

2. For D’s Use or Benefit (Commercial Purpose) (Transformative Use Test)

3. Lack of Consent

4. Resulting Injury

CA Statute

1. Knowing Use

2. Direct Connection to Commercial Purpose

What are the defenses to appropriation?

1. Newsworthiness
   BUT Newsworthiness Defense Destroyed IF:
   Advertisement in Disguise
   No Real Relationship

Element 1: Use of P’s Name or Likeness - Rule

1. D used P’s name, likeness, distinct marker of identity. Was P “readily identifiable?”

2. Extends to nicknames, signatures, catchphrases, distinctive physical stances, tools of the trade, look-alike models, sound-alikes, fictitious personas, combination of characteristics (Vana White)

3. Minor alterations —> shows knowing use

Element 2: For D’s Use or Benefit (Commercial Purpose) - Rules

1. For business purposes: to advertise, promote, to accompany a product or service

2. P’s identity must have INTRINSIC value (something of value)

3. Incidental use doesn’t count: postal workers are fungible.

4. Placing identity near ad/to illustrate news —> insufficient. Must be designed to induce revenue. Profit motive not enough.

Element 2: For D’s Use or Benefit (Commercial Purpose) - Factors

1. For-profit vs non-profit?

2. Direct vs detached solicitation? (this isn’t an ad at all—nothing on the face of the ad asks for money)

3. Selling a good or ADVOCACY?

4. Reporting news/entertainment/artistic expression?

5. Use designed to sell ad space/boost publication sales?

Transformative Use Test - Rule

Is it primarily/dominantly D’s own creative expression, or does its marketability and economic value derive primarily from the plaintiff's fame?

CA Statute: Knowing Use

D knowingly used P’s name, voice, signature, etc

CA Statute: Direct Connection to Commercial Purpose

Direct nexus between P’s specific use and D’s commercial purpose

Newsworthiness Defense: Rule

Protected if name or likeness used in NON-commercial way for public interests (CL) and public affairs (CA). (news, public affairs, sports broadcasts).

Advertisement in Disguise: Rule

Looks like news but is actually to sell a product —> newsworthy defense fails

No Real Relationship: Rule

If no relationship between P’s identity and the public interest/public affairs/newsworthy matter —> newsworthy defense is lost.