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What is Misappropriation of Likeness?

By John DiGiacomo

Some people are famous like politicians, film and music celebrities and sports stars. Because they are famous, they are recognized by their fans and some people are so famous that they are literally recognized by everyone. Examples are people like actress Marilyn Monroe and basketball great Michael Jordan. Because they are famous, there is great value in using such a person or their likeness in marketing and advertising campaigns. This is true even if the person has died.

However, it is unlawful to use a person’s likeness without their permission. When a person’s likeness is used without lawful authority, this is called misappropriation of likenesses and a violation of a person’ right of publicity. Misappropriation is a legal term that basically means “theft.” There are many ways that misappropriation of likeness can occur. A basic example is using a person’s likeness as an endorsement for a product. But misappropriation of likeness can occur with the use of some particular attribute of a person like a unique tattoo.

For example, rapper Cardi B was sued a couple of years ago by Kevin Brophy, Jr., who has a uniquely identifying tattoo on his back. Brophy sued alleging that Cardi B used his distinctive back tattoo on the cover of one of her music mix tapes. See media report here. As reported, Brophy alleges that his back tattoo was photoshopped onto someone else’s body and the pose suggested that the person was engaged in sexual behavior. Brophy claimed that his likeness was used without his permission and used in “a misleading, offensive, humiliating and provocatively sexual way.” Similar lawsuits have been filed by sports stars when their likenesses and unique tattoos have been used in sports-themed video and online games.

If someone’s likeness has been misused in this manner, then a lawsuit can be filed claiming misappropriation of likeness. The claim is a form of defamation. To succeed, the person suing must show these legal elements:

  • A person’s name or likeness or an identifiable personal attribute (like a tattoo) are used by another
  • Without the person’s permission or license
  • That use was made for the benefit of the other person/business — most often for financial gain
  • The unauthorized use is causally connected to
  • Some injury or damage — such a economic loss or damage to reputation

There are some exceptions to unauthorized use of a person’s likeness such as for news and media reporting. Likewise, “permission” can be implicit as, for example, when celebrities pose for photographs at media events and/or on the “red carpet” before an awards show. But implicit permission also has implicit limits (such as the likenesses can only be used with respect to the event in question).

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