Answer To MBE Question From December 13th

(D) is correct.


Issue:  Which cause of action does  the  actress  have  against  the  bakery  for  using  her  picture  to  advertise its products?


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  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.


Another  invasion  of  privacy  tort  is  placing  the  plaintiff  in  a  false  light  before  the  public.  One  who  gives  publicity  to  a  matter  concerning  another  that  places  the  other  before  the  public  in  a  false light is subject to liability to the other for invasion of his or her privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.


Analysis: Here, the bakery is using the actress’s picture without her authorization or permission for the promotion of their product.  This satisfies the elements for the tort of appropriation.  Note that it is immaterial that the actress has approved the wide distribution of her pictures and that it was one of these pictures that was used. The injury here lies in the fact that the actress’s picture is being used for the commercial benefit of the bakery.


(D) is correct because it describes the tort committed against the actress. Using the picture for commercial purposes without permission is appropriation and constitutes a viable cause of action against the bakery.


(A) is incorrect because the elements for portrayal in a false light are not met. Even if we assume that the actress was portrayed in a false light, there is nothing about the image or the use of it in the advertisement, based on these facts, that indicate it would be highly offensive  to a reasonable person. Appropriation is the better option for the actress.


(B) is incorrect because nothing in the facts indicate that the bakery intruded on the actress’s private affairs.


(C) is incorrect because the photographs used were already in distribution.