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.