Also known as: misappropriation · misappropriated · misappropriating · misappropriation tort
Written by attorneys · grounded in primary & secondary sources — see below
A common law tort imposing liability when a defendant appropriates the commercial value of another's identity or property for the defendant's own benefit without authorization. The plaintiff must show that the defendant exploited a protectable interest belonging to the plaintiff and obtained an unjust advantage from that exploitation.
Tara Tran discovers that a production company has released a film dramatizing her rise from poverty to business success and has used her actual name and life events to promote ticket sales. She never consented to the use. The company earns substantial profits from the film. Tara sues for the tort of misappropriation, claiming the company exploited her identity for commercial gain.
Tyler Taylor, a partner at a law firm, directs a client to wire settlement proceeds into the firm's trust account. Tyler then transfers the funds to his personal account without authorization. The client sues the firm, alleging that the partner's conduct constitutes misappropriation of entrusted property that binds the partnership under ordinary-course rules.
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Tanya Tang, a partner handling a personal-injury settlement, receives client funds into the firm's trust account. She transfers most of the money to her own investment account, intending to repay it later. The client suffers no permanent loss but sues the firm, asserting that the knowing diversion of entrusted funds amounts to misappropriation triggering partnership liability.
Titan Industries gathers breaking financial data through its reporting network and sells the information to subscribers under a strict embargo. Torchlight Media obtains the data during the embargo period, repackages it, and sells it to its own clients without payment. Titan sues, claiming Torchlight misappropriated the commercial value of its news product.
Talia Torres wins a jury verdict against a company that used her name and likeness in an advertising campaign without consent. The jury awards substantial compensatory damages plus punitive damages. On appeal the company argues the punitive award is excessive, forcing the court to examine whether the misappropriation tort supports such enhanced liability.
Tundra Resources develops a novel boat hull design and markets it commercially. A competitor copies the design and sells identical hulls. Tundra sues under a state misappropriation theory. The competitor moves to dismiss, arguing that federal patent law preempts the state tort claim for the design.
The plaintiff must show that the defendant appropriated a protectable commercial interest belonging to the plaintiff, such as identity or property, and obtained an unjust benefit from the exploitation without authorization.
No. Liability arises from the unauthorized commercial exploitation itself, even in the absence of confusion or defamatory statements.
Conversion requires dominion over tangible property, whereas misappropriation can reach intangible commercial values such as identity or hot news that lack physical embodiment.
It depends on the subject matter. Claims targeting designs or inventions within patent subject matter are often preempted, while claims protecting identity or hot news may remain viable.
…news itself. The defendant’s conduct is at most a breach of confidence or a violation of trade custom, but does not constitute a tort of misappropriation of property. The proper remedy, if any, lies with Congress through legislation, not through judicial creation of a new property right. The decree should be reversed.…