Privacy

3. What legal rules govern appropriation cases?

Appropriation, the first type of privacy claim to gain widespread acceptance, is the unauthorized use of a person’s name or identity for trade or business purposes.  Owing to its emphasis on commercial exploitation, it is frequently called “commercialization.”  Claims for appropriation arise most frequently in connection with advertisements that promote a product or service by associating it with a well-known person.

Although appropriation is classified as a type of invasion of privacy, most appropriation or commercialization cases actually have to do with publicity and are brought by celebrities seeking to prevent others from cashing in on their fame.  For example, in 1980 Johnny Carson, the long-time host of the “Tonight” show, successfully sued a Mich. company that marketed its portable toilets under the name “Here’s Johnny.”^[5]

In some states, such as New York, California and Florida, appropriation claims are based on statutes enacted by the state legislature.^[6] In many other states, including North Carolina, the courts have recognized appropriation claims as part of the common law – that is, as part of the body of law that has been passed down to us through centuries of legal precedents.^[7]

The plaintiff in an appropriation case must show that the defendant, without permission, used the plaintiff’s “name or likeness” for his own benefit.^[8]

The N.C. Supreme Court recognized appropriation claims in 1938 in Flake v. Greensboro News Co.^[9]  The Flake case arose when the Greensboro Daily News published an advertisement for the “Folies de Paree,” a touring vaudeville show scheduled to appear at a local theater.  The advertisement included a photograph of a swimsuit-clad young woman, who was described as “Sally Payne,” an “exotic red-haired Venus” appearing in the show.  In fact, however, the young woman pictured was Nancy Flake, a singer who had made phonograph records and appeared with orchestras throughout North Carolina.  The published photo, for which Ms. Flake had posed at the request of her recording company, was inserted into the advertisement accidentally by an employee of the newspaper.  When the mistake was called to its attention, the Daily News immediately stopped running the advertisement, but Ms. Flake later sued the newspaper for libel and for invasion of privacy.

Ultimately, Ms. Flake’s case reached the N.C. Supreme Court, which upheld her right to sue the newspaper for appropriation of her likeness but limited the amount of damages that she could recover because she could not show any specific financial damages and because the use of her photograph was not intentional.^[10]  North Carolina's appellate courts have not had occasion to address the appropriation tort since 1939, when the Flake case was decided.

Early on, courts rejected the notion that an appropriation claim could be based on the publication of a person's name or photograph in connection with news stories.  As early as 1908, for example, a N.Y. man sued the New York World for publishing his picture on its front page.^[11] He claimed that his picture attracted readers to the paper, resulted in the sale of more copies, and therefore constituted a “trade or commercial” use.  The N.Y. courts rejected this argument, holding that claims for appropriation were not intended to prohibit a newspaper from publishing a person’s name or picture as part of its coverage of newsworthy events.^[12] This line of reasoning has been followed consistently by courts in many other jurisdictions.  The fact that news organizations are for-profit businesses does not prevent their use of newsworthy photographs and information. Moreover, the concept of newsworthiness is usually interpreted broadly, as in a 1971 case brought against New York Magazine by a man whose photograph was taken as he marched in the St. Patrick’s Day parade dressed in an Irish hat, a green bow tie and an Irish pin. New York's highest court ruled that his photo, which appeared on the magazine’s cover, was newsworthy because the parade was “an event of public interest to many New Yorkers.”^[13]

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