Privacy Torts: Appropriation

What triggers Appropriation? (What page of the Restatement packet?)

Someone uses another’s name, photo, voice, likeness, or OVERALL identity WITHOUT consent. According to Brain, doesn’t have to be for commercial purpose. (p.164)

What are the elements of Appropriation?

1. Use of Name or Likeness (Including Overall Identity)

2. For Defendant’s Own Use or Benefit (Commercial Purpose)

Defendant uses the Plaintiff’s identity in a news article, documentary, or biography. Appropriation?

No

What is Right of Publicity?

P’s ability to recover non-payment for the use of her identity

What is the 1st Amendment Defense to Appropriation?

Newsworthiness (e.g. LA Times using Taylor Swift’s photo to report on the Eras Tour)

What is the Transformative Use Test?

A defense to appropriation. Likeness is so transformed it is primarily Defendant’s own expression

What are the Key Questions for Transformative Use?

1. Reproduction vs artist’s own expression

2. Buyer’s intent when purchasing: for celebrity’s likeness or for commentary?

Does interactivity (e.g. a video game) create a transformative user experience?

Brown: Interactivity creates transformative experience