Superhero Privacy Rights, Part Three

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.

I. Appropriation

Unlike intrusion and disclosure, appropriation does not concern private facts.  Instead, appropriation is defined by the Restatement (Second) of Torts thus: “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.” § 652C.  Since private facts aren’t at issue here, this tort could apply to the appropriation of the name or likeness of the superhero identity, the secret identity, or both.  Note, however, that many states have specific statutes for appropriation, and the definition given in the Restatement does not necessarily track the statutes or even state-by-state common law.

As you can probably guess, appropriation is related to the right of publicity, but they concern different kinds of harm.  As McCarthy says, “an infringement of the right of publicity focuses upon injury to the pocketbook, while an invasion of ‘appropriation privacy’ focuses upon injury to the psyche.” McCarthy, 1 Rights of Publicity and Privacy § 5:60.  Note, though, that an invasion of appropriation privacy may be caused by commercial exploitation of someone’s name or likeness (and indeed many state statutes require it), but the measure of damages is still the mental anguish and physical distress caused by the appropriation.

Given the effort that many superheroes put into maintaining a sterling reputation in the community, one can see how they might suffer significant mental and physical distress upon seeing their name or likeness used without their permission, particularly if the use was unsavory (e.g. using the image of the Human Torch and his ‘Flame On!’ catchphrase to sell cigarettes).

II. The Right of Publicity

As mentioned, the right of publicity has more of a property right quality to it.  And indeed, unlike the right of privacy, the right of publicity may be assigned or licensed to others.  And this makes sense because privacy is inherently personal; it cannot really be divorced from the individual in question.  The commercial use of one’s name and likeness, however, can be licensed or assigned to others, and so the right to sue for infringement of that right follows.  This is important in the superhero context, as we shall soon see.

The elements of a claim of invasion of the right of publicity are generally these, as summarized by McCarthy in 1 Rights of Publicity and Privacy § 3:2:

1. Validity – Plaintiff owns an enforceable right in the identity or persona of a human being; and
2. Infringement
   (A) Defendant, without permission, has used some aspect of identity or persona in such a way that plaintiff is identifiable from defendant’s use; and
   (B) Defendant’s use is likely to cause damage to the commercial value of that persona.

A few things to note: actual damage is not required, only likely damage, and neither falsity nor confusion are required.  It could in fact be true that Superman enjoys Metropolis Brewery Beer and it could be clear that the use of Superman’s name and likeness were unauthorized, but that is immaterial to this tort.

Superheroes, particularly well-known ones are likely to have significant commercial value in their identity or persona.  Superhero product endorsements, movie and TV appearances, and other uses are probably at least as valuable in the comic book world as the real one.  Thus, the right of publicity is an extremely important one for a superhero, whether it’s used as a carrot to fund an otherwise cash-strapped superhero or as a stick to fend off inappropriate use of a superhero’s name and likeness.

III. Conclusion

In practice I think most superheroes will prefer the right of publicity over appropriation.  Not only are significant damages easier to prove, but the right is assignable.  That means that a superhero could assign his or her right of publicity to a trust, foundation, or other entity, who could then sue on his or her behalf if his or her name or image was misused.  That helps keep the superhero out of court, which is fraught with problems.