Also known as: misappropriated name · misappropriating name · misappropriate name · misappropriation of likeness
Written by attorneys · grounded in primary & secondary sources — see below
A tort that protects an individual's property right in the commercial use of their identity. Liability arises when a defendant makes unauthorized use of the plaintiff's name or likeness for the defendant's benefit, even absent defamation.
Ming Ma wrote a book recounting the life of local business leader Meredith Maxwell and sold it without permission to promote a line of self-help seminars. Maxwell discovered the use when customers at her stores asked about the book. She sued Ma for exploiting her identity to sell the seminars. The court recognized Maxwell's property interest in her name and allowed the claim to proceed.
Mason McCarthy, a professional hockey player known for community work, learned that a comic series featured a violent mobster named after him. The publisher sold trading cards and merchandise using the name to market the series. McCarthy lost endorsement deals and sued for the commercial exploitation of his identity. The court treated the claim as one for misappropriation and ordered a new trial after a large jury verdict.
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Misappropriation protects a property interest in the commercial value of one's identity. Defamation protects reputation from false statements. A plaintiff can recover for misappropriation even when the use is truthful and non-defamatory.
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The plaintiff must show the defendant used the plaintiff's name or likeness without consent for the defendant's commercial benefit. Courts examine whether the use unjustly exploited the plaintiff's identity and caused harm such as lost endorsements.
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No. When the use of the name has no real artistic or expressive value and primarily serves a commercial purpose, the First Amendment does not shield the defendant. Courts weigh the expressive content against the commercial exploitation of the plaintiff's identity.
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Yes. When the unauthorized use damages the plaintiff's commercial value or prevents endorsement deals, courts may award compensatory damages. The Missouri Supreme Court permitted such recovery in a case involving a comic-book character sharing the plaintiff's name.
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