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§39.2 Appropriation of Another’s Name or Likeness

Author's Note : The Tennessee Supreme Court has never expressly recognized a cause of action in tort for appropriation of another's name or likeness. However, in West v. Media General Convergence, Inc., 53 S.W.3d 640 (Tenn. 2001), our Supreme Court explained that according to the Restatement (Second) of Torts, there are four categories of invasion of privacy claims, including appropriation of another's name or likeness under Section 652C. However, the court did not expressly indicate that it would recognize the tort of appropriation of another's name or likeness in Tennessee and no later Tennessee appellate decision has expressly done so. Judges and lawyers exploring this area may receive some guidance from State ex rel. Elvis Presley Int'l Mem. Foundation v. Crowell, 733 S.W.2d 89 (Tenn. Ct. App. 1989) (celebrity's right of publicity has value and survives the death of the celebrity).

Here is the text of and comments to Section 652(C) of Restatement (Second) of Torts:

One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.

Comments:

a . The interest protected by the rule stated in this Section is the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others. Although the protection of his personal feelings against mental distress is an important factor leading to a recognition of the rule, the right created by it is in the nature of a property right, for the exercise of which an exclusive license may be given to a third person, which will entitle the licensee to maintain an action to protect it.

b. How invaded . The common form of invasion of privacy under the rule here stated is the appropriation and use of the plaintiff's name or likeness to advertise the defendant's business or product, or for some similar commercial purpose. Apart from statute, however, the rule stated is not limited to commercial appropriation. It applies also when the defendant makes use of the plaintiff's name or likeness for his own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one. Statutes in some states have, however, limited the liability to commercial uses of the name or likeness.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

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