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.