In the first two installments of this series we discussed the invasion of privacy torts of intrusion and disclosure. This post will address the tort of appropriation and the closely related right of publicity. Since the two are closely related, let’s begin by distinguishing them.
Here’s how the Nevada Supreme Court distinguished them in PETA v. Bobby Berosini, Ltd., 895 P.2d 1269 (Sup. Ct. Nev. 1995):
The distinction between these two torts is the interest each seeks to protect. The appropriation tort seeks to protect an individual’s personal interest in privacy; the personal injury is measured in terms of the mental anguish that results from the appropriation of an ordinary individual’s identity. The right to publicity seeks to protect the property interest that a celebrity has in his or her name; the injury is not to personal privacy, it is the economic loss a celebrity suffers when someone else interferes with the property interest that he or she has in his or her name. We consider it critical in deciding this case that recognition be given to the difference between the personal, injured-feelings quality involved in the appropriation privacy tort and the property, commercial value quality involved in the right of publicity tort.
Although damages are measured differently for the two torts, the relief ultimately boils down to the same thing: money damages and (probably) an injunction forbidding future appropriation or violation of the right of publicity.
