Invasion of Privacy–Appropriation

The law provides everyone with some basic rights to privacy. Privacy is the general right to be left alone and free from unwanted publicity. Unreasonable invasion of one’s privacy causes harm.

There are four well-established lawsuits for invasion of privacy: appropriation; false light; intrusion; and disclosure. In most states, the rights under these lawsuits are personal. Most end when a person dies, and they do not apply to corporations and other legal entities.

This article discusses the invasion of privacy lawsuit known as appropriation.

Your Name, Likeness, or Personality

People have a general right to not be exploited without their consent. Appropriation is defined as the use of a person’s name, likeness, or personality for the benefit of another. The classic example of appropriation is someone using your picture to advertise a product, without your consent. The classic example of consent to appropriation is the business of modeling, whereby a person’s likeness is used in the advertising of clothing.

The Elements of Appropriation

The basic elements of appropriation are (1) unreasonably, either intentionally or negligently, (2) using a person’s name, likeness, or personality for the benefit of another. Special damages and punitive damages, if any, must also be proven.

Defenses to Appropriation

The defendant in an appropriation lawsuit can challenge the plaintiff’s proof of the basic elements of appropriation. For example, the defendant may be able to show that the person pictured in an advertisement is merely someone who resembles the plaintiff but, in fact, is not the plaintiff.

The defendant in an appropriation lawsuit can defend on the basis that what the plaintiff contends is private is actually public. Matters of public record are not private. If a person is involved in a matter of legitimate public concern, a “newsworthy” event, the person becomes a public figure with respect to that event, regardless of the person’s intentions or desires. If a person is a public official or public figure, his or her reasonable expectations of privacy are dramatically reduced. As a practical matter, a public official or public figure cannot successfully sue unless the invasion of privacy is outrageous or done with actual malice.

A common defense to invasion of privacy is consent, express or implied. A person who accepts money or other considerations in exchange for the invasion of privacy is said to have sold his or her “rights.” Also, some defendants, such as government officials, have immunity.

Note that, unlike a defamation lawsuit, truth is not a defense. Because the interest being protected by an appropriation lawsuit is a person’s privacy, not a person’s reputation, truth is irrelevant.

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