Answer To November 21st MBE Question
Issue: Whether the fan has a valid claim against the radio station for the use of his voice without his permission.
Rule: The tort of appropriation is a form of invasion of privacy. A party who uses the name or likeness of another party for its own commercial benefit is subject to liability for appropriation. This tort applies to the use for promotion or advertisement of the defendant’s business or product; the mere fact that the defendant is using the plaintiff’s name or likeness for their own personal profit (e.g. the use of a celebrity name in a newspaper story), by itself, is not sufficient. Note that the use of a person’s name, picture, or likeness is allowed in a publication where the person’s picture is used to illustrate a matter of legitimate public concern.
Analysis: Here, the radio station recorded statements from the fan without obtaining his approval. Moreover, the radio used these recorded statements in promotions and commercials for the radio station. As such, the elements for appropriation are satisfied: the radio station used the “likeness” of the fan for its own commercial benefit. Thus, (D) is the correct answer.
(D) is correct because the radio station used the fan’s name and voice without permission for its own commercial benefit.
(A) is incorrect because it is irrelevant that the fan made the statement over the radio; what is relevant is the fact that his voice was then later used for the commercial benefit of the radio station. No approval or permission can be implied from the fan’s public statements since the fan called solely to participate in the radio contest and only shouted the radio station’s name in response to the disc jockey’s request. Without any approval or permission from the fan, the radio station is liable for appropriation.
(B) is incorrect because truth and accuracy are not defenses to appropriation. It is irrelevant what the substance of the statement is; what matters is that it was used for commercial benefit without permission.
(C) is incorrect because the statement is not an intrusion into the fan’s private life; at issue is the fact that the statement was appropriated for commercial benefit.