Torts of Appropriation
Social media increases the rate an individual’s identity may be circulated. If the creator did not receive authorization to use their “name, picture, or voice,” courts consider this an invasion of privacy known as appropriation (Trager 246). They also consider a visual image containing characteristics, which evoke the identity of the plaintiff to the public as appropriation. Commercialization and the right of publicity are two different torts of appropriation, which differ from each other in three ways.
One difference between commercialization and the right of publicity is the classification of the type of right the tort falls under. The Court generally consider commercialization as a personal right, whereas they consider the right of publicity as a property right. Defined as commercialization, a person's identity may not be used for commercial purposes without their permission. This tort represents the idea that an individual may be left alone, and the public shall refrain from scrutinizing their personal information.
In contrast, the right of publicity allows an individual to control when, how, and where one uses their name or likeness. The Court considers this tort as a property right because it likens the person’s identity to an economic good. This means one may determine how they use, own, and receive benefit from this intangible resource. For example, in Hilton vs. Pera, socialite, Paris Hilton, alleged the defendant misappropriated her name and likeness by selling subscriptions to their website. The website's audience could pay to access Hilton’s private information such as her medical/health information, social security number, and sexual images previously unreleased for public viewing (Latham & Watkins 4). The defendant not only profited from the subscriptions, but they also used Hilton’s name to entice people to visit their website. Thus, Hilton sued for appropriation, which included commercialization and the right of publicity tort. When one violates these two torts, the ramifications regarding the plaintiff vary in their degree of harm.
Some people desire to remain known only to family and friends. Therefore, commercialization exposes one’s personal life to the public, which may cause emotional distress. Public figures cannot claim one violating their right of publicity causes them to feel shame as they chose to publicize their life. However, the consequence of using a well-known person’s “name, picture, likeness, voice or identity” for profit without their consent “diminishes their economic value” (Trager 248). Private people do not normally make money from their public image and cannot claim a loss in profit, but celebrities can. For example, in Michael Jordan vs. Jewel-Osco and Dominick’s, the supermarket chain, Jewel-Osco, misused Jordan’s name in a 2009 Sports Illustrated advertisement, when they placed their “large Jewel-Osco logo” under some text, which “congratulated the six-time NBA champion on his induction into the Basketball Hall of Fame” (Chicago, AP). In 2015, Jordan received $8.9 million from the now-inoperative Dominick’s Finer Foods, because Jordan did not permit them to use his name, nor did he receive payment from the ad’s revenue. Celebrities, like Michael Jordan, may have privacy rights, which stay with him after he dies.
A person’s rights will either die with them or survive their death. Aforementioned, commercialization is a personal right, which does not extend to a person after death. For example, if one dies, their medical privacy rights die with them, so family members and relatives may “obtain sensitive information about a decedent’s medical conditions” (Smolensky 763). Since the right to publicity is a property right, one may designate who controls this right after their death. For example, to “benefit one’s heirs after death, protect contract rights, discourage consumer deception, and [enforce] the policy against unfair competition,” motivated a Tennessee court to determine the right of publicity survived Elvis Presley’s death (Colin). Additionally, Presley’s publicity rights transferred to those who hold the license for his estate. Usually, a celebrity’s right of publicity continues after death, but the intricacies of the statues vary among the states.
While commercialization and the right of publicity are both torts of appropriation, they have a few characteristics, which distinguish from each other. These two torts differ based on the right the tort corresponds with, the degree of harm the tort caused to an individual, and the fate of the right after one’s death. With the increase in digital content creation and the desire to share information, preventing appropriation, and protecting people’s privacy rights becomes more important now more than ever.
Chicago AP. “Michael Jordan, jewel-Osco reach settlement over use of name.” The Associated Press, https://apnews.com/6f2c975acf3644199882d28f17e1c7f3 Accessed 27 Oct. 2019
Collin, Peter, Jr. “Elvis and Prince: Personality Rights Guidance for Dead Celebrities and the
Lawyers and Legislatures Who Protect Them.” The National Law Review, https://www.natlawreview.com/article/elvis-and-prince-personality-rights-guidance-dead-celebrities-and-lawyers-and Accessed 27 Oct. 2019
Latham & Watkins Litigation Department. “Lessons from Paris Hilton v. Bardia Persa et al.”
Client Alert, vol. 569, 2007, pp. 4.
Smolensky, Kirsten Rabe. “Rights of the Dead.” Hofstra Law Review, vol. 37, no. 3, pp. 763