Also known as: for the purpose of trade · for purpose of trade · in the course of trade · commercial purpose
Written by attorneys · grounded in primary & secondary sources — see below
A use of another's name, likeness, or other indicia of identity that exploits its commercial value. Such a use occurs when the identity is employed to promote or sell goods or services rather than in news, commentary, or incidental advertising for expressive works.
Select any source to read its text and confirm it supports the definition.
A religious organization uses a famous member's name and likeness in advertisements for its apartment units. The use promotes rentals to generate profit. This constitutes a use for purposes of trade that violates the member's right of publicity.
A television station films and airs Hugo Zacchini's entire human cannonball act without consent. The broadcast appropriates the very performance by which Zacchini earns his living, amounting to a use for purposes of trade that supports his right-of-publicity claim.
During wartime, a merchant appropriates a neutral citizen's likeness on shipping labels to promote trade with enemy ports. The commercial exploitation of identity for purposes of trade renders the labels subject to seizure.
A political group threatens to sue a newspaper for publishing an advertisement that criticizes its positions. The threat targets speech that is not itself a use for purposes of trade, so the First Amendment protects the advertisement from the chilling effect of the lawsuit.
After Bela Lugosi's death, a studio licenses his likeness from the Dracula film for use on posters and toys sold to the public. The licensing exploits the commercial value of Lugosi's identity for purposes of trade, giving rise to a right-of-publicity claim by his heirs.
A magazine publishes a story that dramatizes a real family's ordeal. The story is presented as fiction and does not promote any product. Because the use is not for purposes of trade, the family cannot recover under the right of publicity.
Use qualifies when it exploits the commercial value of the identity to sell goods or services. Incidental use in news reporting, commentary, or entertainment works does not count. Courts examine whether the primary purpose is advertising or promotion rather than expression.
Yes. The statute exempts religious organizations that limit occupancy to members of the same religion only when the dwellings are operated for other than a commercial purpose. Profit-generating rental operations fall outside the exemption.
…I agree that the compensatory damage instruction given by the trial court required only such a determination and a finding of "commercial purpose" to sustain liability. And reading the opinion of the Appellate Division in the light of other New York decisions I believe that this was the theory upon which the jury finding was…