How to Defend Against Appropriation of Name or Likeness Claims
Read the complaint thoroughly., Gather information., Search for releases., Study your state's law., Check the statute of limitations., Contact the plaintiff.
Step-by-Step Guide
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Step 1: Read the complaint thoroughly.
If you are sued for appropriation of name or likeness, you must first understand who is suing you and why.
Take note of the name of the person and the publication for which they are alleging that you appropriated his or her name or likeness.
Check the location of the court in which you are being sued.
If it is far away from you, look at the rules for personal jurisdiction and find out if the court has jurisdiction over you.
If you believe the court doesn't have jurisdiction over you, say so in the first thing you file with the court – typically your answer to the lawsuit.
If you don't assert this objection in your first court filing, the court will assume that you've waived the issue and you won't have the ability to bring it up later.If the court is far away from you, venue also may be a problem.
While personal jurisdiction refers to the state in which the plaintiff must file his or her lawsuit, venue refers to the particular county or court location.Like personal jurisdiction, any objection to venue is something you must raise in the first document you file with the court.The person suing you also must have standing to sue.
Generally, any invasion of privacy claim, including appropriation of name or likeness, is viewed as a personal claim.
This means only the person whose privacy was invaded has the right to sue.
Relatives generally can't sue on someone else's behalf, and the lawsuit can't be carried on by the estate of someone who died.
However, right to publicity claims may survive a person's death under certain circumstances. -
Step 2: Gather information.
You will need information about the published material for which you're being sued.
Look up the post, page, or article that has caused the lawsuit.
Even if the plaintiff has attached copies or screen-caps, looking it up on your own will help you understand the context.
If the problem was the result of a mistake or misunderstanding, you may be able to clear this up with the plaintiff outside of court and avoid a lawsuit entirely. , If you can find a release form permitting your use of the plaintiff's name or likeness, you have a complete defense to the lawsuit.
If the publication that forms the basis of the complaint was a post on social media, the terms and conditions of the website itself may help you.
Social media sites typically require users to allow others to share posts and comment on them.If the lawsuit concerns your use of a photo obtained from somewhere else, such as a stock photo, read carefully the releases for those services and the terms to which you agreed when you signed up for the service.
If you operate a website or business that has used the plaintiff's name or likeness in some way, they also may have signed some sort of release form that allows you to use their name or likeness.
For example, suppose you run the local grocery store and have included a picture of the winner of the county fair's watermelon-eating contest in your produce ads.
That winner has now sued you for appropriation.
However, if she signed a release that allowed photos of her participating in the contest to be used by the fair and its sponsors.
Since your grocery store sponsored the fair, you have a complete defense that the plaintiff authorized your use of the photo. , Each state's law defines appropriation somewhat differently and requires the plaintiff to prove certain elements.
You must know your state laws requirements to fully analyze the allegations set forth in the complaint.
If the plaintiff has not included all of the elements required by your state's law, you may be able to get the complaint dismissed.
Generally, the plaintiff must allege – and ultimately prove – that you used some protected attribute of her identity, such as her name, image, or voice, for an exploitative purpose without her consent.Which attributes of a person's identity are protected vary from state to state.
For example, California law protects a person's name, likeness, voice, signature, and photograph.
However, Florida law only protects a person's name, likeness, and photograph.Pay attention to the attributes your state protects, and make sure the plaintiff's allegations match up.
For example, if your state doesn't protect people against the appropriation of their voice, and the plaintiff alleges you have misappropriated her voice in an audio file saying "That's great watermelon!" in your advertisements, she has failed to state a claim under your state's law.
Different states also have different standards for how a purpose qualifies as commercial.
Typically there must be a direct correlation between the profits you derived and the use of the plaintiff's name or likeness., If your state's statute of limitations has passed, the plaintiff is no longer allowed to sue you.
Like personal jurisdiction and venue, you waive any objection to the passage of the statute of limitations unless you mention it in your first filing with the court.
The statute of limitations provides a deadline for filing a lawsuit after the incident has happened.
The clock generally starts ticking from the moment the offending material was published.Each state's statute of limitations for filing an appropriation of name or likeness claim varies widely, but it will generally be between one and six years., In many situations you can talk to the person who has sued you and attempt to resolve the dispute out of court.
For example, if the use was simple error, you may be able to get out of it with a public retraction – although typically the plaintiff will also expect some amount of monetary compensation.
Keep in mind that appropriation claims differ from other invasion of privacy claims in that they are designed to compensate people for the use of their name or likeness for commercial purposes, rather than protect their interest in being left alone.Even though the person has already filed a complaint, you still can suggest using a mediator to resolve the matter more efficiently.
Most courts have lists of approved mediators, and some courts have programs available to provide free mediation of pending civil suits.Provided the person suing you is not famous, you may be able to get out of the lawsuit fairly easily if you offer the same amount of money you normally would pay a model, spokesperson, or other commercial actor. -
Step 3: Search for releases.
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Step 4: Study your state's law.
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Step 5: Check the statute of limitations.
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Step 6: Contact the plaintiff.
Detailed Guide
If you are sued for appropriation of name or likeness, you must first understand who is suing you and why.
Take note of the name of the person and the publication for which they are alleging that you appropriated his or her name or likeness.
Check the location of the court in which you are being sued.
If it is far away from you, look at the rules for personal jurisdiction and find out if the court has jurisdiction over you.
If you believe the court doesn't have jurisdiction over you, say so in the first thing you file with the court – typically your answer to the lawsuit.
If you don't assert this objection in your first court filing, the court will assume that you've waived the issue and you won't have the ability to bring it up later.If the court is far away from you, venue also may be a problem.
While personal jurisdiction refers to the state in which the plaintiff must file his or her lawsuit, venue refers to the particular county or court location.Like personal jurisdiction, any objection to venue is something you must raise in the first document you file with the court.The person suing you also must have standing to sue.
Generally, any invasion of privacy claim, including appropriation of name or likeness, is viewed as a personal claim.
This means only the person whose privacy was invaded has the right to sue.
Relatives generally can't sue on someone else's behalf, and the lawsuit can't be carried on by the estate of someone who died.
However, right to publicity claims may survive a person's death under certain circumstances.
You will need information about the published material for which you're being sued.
Look up the post, page, or article that has caused the lawsuit.
Even if the plaintiff has attached copies or screen-caps, looking it up on your own will help you understand the context.
If the problem was the result of a mistake or misunderstanding, you may be able to clear this up with the plaintiff outside of court and avoid a lawsuit entirely. , If you can find a release form permitting your use of the plaintiff's name or likeness, you have a complete defense to the lawsuit.
If the publication that forms the basis of the complaint was a post on social media, the terms and conditions of the website itself may help you.
Social media sites typically require users to allow others to share posts and comment on them.If the lawsuit concerns your use of a photo obtained from somewhere else, such as a stock photo, read carefully the releases for those services and the terms to which you agreed when you signed up for the service.
If you operate a website or business that has used the plaintiff's name or likeness in some way, they also may have signed some sort of release form that allows you to use their name or likeness.
For example, suppose you run the local grocery store and have included a picture of the winner of the county fair's watermelon-eating contest in your produce ads.
That winner has now sued you for appropriation.
However, if she signed a release that allowed photos of her participating in the contest to be used by the fair and its sponsors.
Since your grocery store sponsored the fair, you have a complete defense that the plaintiff authorized your use of the photo. , Each state's law defines appropriation somewhat differently and requires the plaintiff to prove certain elements.
You must know your state laws requirements to fully analyze the allegations set forth in the complaint.
If the plaintiff has not included all of the elements required by your state's law, you may be able to get the complaint dismissed.
Generally, the plaintiff must allege – and ultimately prove – that you used some protected attribute of her identity, such as her name, image, or voice, for an exploitative purpose without her consent.Which attributes of a person's identity are protected vary from state to state.
For example, California law protects a person's name, likeness, voice, signature, and photograph.
However, Florida law only protects a person's name, likeness, and photograph.Pay attention to the attributes your state protects, and make sure the plaintiff's allegations match up.
For example, if your state doesn't protect people against the appropriation of their voice, and the plaintiff alleges you have misappropriated her voice in an audio file saying "That's great watermelon!" in your advertisements, she has failed to state a claim under your state's law.
Different states also have different standards for how a purpose qualifies as commercial.
Typically there must be a direct correlation between the profits you derived and the use of the plaintiff's name or likeness., If your state's statute of limitations has passed, the plaintiff is no longer allowed to sue you.
Like personal jurisdiction and venue, you waive any objection to the passage of the statute of limitations unless you mention it in your first filing with the court.
The statute of limitations provides a deadline for filing a lawsuit after the incident has happened.
The clock generally starts ticking from the moment the offending material was published.Each state's statute of limitations for filing an appropriation of name or likeness claim varies widely, but it will generally be between one and six years., In many situations you can talk to the person who has sued you and attempt to resolve the dispute out of court.
For example, if the use was simple error, you may be able to get out of it with a public retraction – although typically the plaintiff will also expect some amount of monetary compensation.
Keep in mind that appropriation claims differ from other invasion of privacy claims in that they are designed to compensate people for the use of their name or likeness for commercial purposes, rather than protect their interest in being left alone.Even though the person has already filed a complaint, you still can suggest using a mediator to resolve the matter more efficiently.
Most courts have lists of approved mediators, and some courts have programs available to provide free mediation of pending civil suits.Provided the person suing you is not famous, you may be able to get out of the lawsuit fairly easily if you offer the same amount of money you normally would pay a model, spokesperson, or other commercial actor.
About the Author
Rachel Armstrong
A passionate writer with expertise in lifestyle topics. Loves sharing practical knowledge.
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