Answer To MBE Question From December 18th

(D)  is correct.


Issue: Is the designer liable to the pop star under a theory of appropriation for posting a magazine picture of the pop star in her boutique?


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.


Analysis: Here, it is important to note the difference between using a picture in a promotion or advertisement and just using the picture for personal profit. The designer did not actually use the pop star’s picture in a promotion or advertisement; she only posted it on the wall of her boutique. While this does benefit her business, it is not the same as actually using the picture in  an advertisement. Thus, the designer is not liable for appropriation.


(D) is correct because the designer will not be liable for appropriation merely for using the picture for her own personal benefit, i.e  posting it on the wall of her boutique as opposed to  circulating it in an advertisement or promotion.


(A) is incorrect because the fact that the designer benefited from the picture in itself will not be sufficient to establish  appropriation. The picture must have been used in an advertisement or promotion for her product.


(B) is incorrect because it does not refer to an element of or defense to appropriation.


(C) is incorrect because consent to the photograph being taken is irrelevant to whether the tort of appropriation occurred.