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A. Right generally:  The so-called “invasion of privacy” cause of action is essentially four distinct mini-torts. They have in common not much more than the fact that they involve various aspects of the plaintiff’s “right to be let alone.” The four are:

[1] misappropriation of P’s name or picture;

[2] intrusion on P’s solitude;

[3] undue publicity given to P’s private life; and

[4] the placing of P in a false light.

We consider each one in turn below.

B. Misappropriation of identity:  The plaintiff can sue if her name or picture has been appropriated by the defendant for his own financial benefit. The action is said to be for “misappropriation of identity” or “right of publicity.”

Example:  D1, a baker, runs an advertisement for his bread in D2’s newspaper. The ad states, “Keep that Sylph-Like Figure by eating more of Melts’ rye and whole wheat bread, says Mlle. Sally Payne, exotic red-haired Venus.” By mistake, the ad contains a picture of P in a bathing suit rather than a picture of Sally Payne.

Held, “The unauthorized use of one’s photograph in connection with an advertisement or other commercial enterprise gives rise to a cause of action. .  .  . ” Furthermore, P is entitled to nominal damages if she cannot prove actual damages. Flake v. Greensboro News Co., 195 S.E. 55 (N.C. 1938).

1. Statutory regulation:  A number of states have enacted statutes preventing such appropriation. See, e.g., New York Civil Rights Law §§50-51, which prohibits the use of any person’s name or likeness without his consent for “advertising purposes” or for “purposes of trade.”

2. Evoking a celebrity:  There is dispute about whether the defendant should be liable for common-law misappropriation of identity if all he has done is to “evoke” the identity of a celebrity. Several courts have answered “yes” – even though the celebrity’s name or “likeness” is not used, if advertising causes the reader to think that the celebrity is being referred to for the advertiser’s financial benefit, that’s enough to constitute common-law appropriation.

Example:  D, a manufacturer of VCRs, runs an ad depicting a robot, dressed in a wig, gown and jewelry which D has consciously selected to resemble the hair and clothing of P (TV personality Vanna White). The robot is posed next to a game board which is recognizable as the Wheel of Fortune game show set. D refers to this ad internally as the “Vanna White ad.” P does not consent to the ad, nor is she paid. She sues for, among other things, violation of her common law right of publicity.

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