Misappropriation of Name/Likeness

Generally speaking, the Misappropriation of Name or Likeness is grounded in Texas Right of Publicity laws. This protects the unauthorized use of a person’s name or likeness for commercial purposes. Texas has two comprehensive systems established: a statutory, posthumous right (The “Buddy Holly Bill”) and for you breathing folks, a common law right.

Let’s stick with the above ground version for the time being.

Common law misappropriation of likeness protections is grounded in tort law and haven’t really been distinguished from Right to Privacy laws. However, this right steadfastly protects an individual’s name or likeness which, in the state of Texas, has been interpreted to be the person’s identity. And here’s the anchor: much like the statute, the common law protects the value associated with the name or identity rather than the name per se. 

Below is a prime example:

  • In 1997, Dillard’s department store ran a newspaper advertisement for a shirt known as a “Henley.” The ad featured a photo of a man wearing a Henley shirt, with the printed words beside it, “This is Don” with an arrow pointing from those words to the man’s head. Under the photo were additional printed words, “This is Don’s Henley” with an arrow pointing from those words to the man’s shirt. The ad ran in newspapers throughout Texas and Mexico.

The only thing missing was the "Hotel California" theme playing in the background.  

Accordingly, the Honorable Jorge A. Solis didn't pull any punches when he opined the following:

“Dillard should be held liable because it received a benefit by getting to use a celebrity’s name for free it its advertising. Whether or not the advertising worked for Dillard is wholly irrelevant. The Court concludes that there is no fact issue from which a reasonable jury could conclude that Defendant did not receive a benefit from its use of Plaintiff’s likeness . . . . Plaintiff Henley’s Motion for Partial Summary Judgment is hereby GRANTED.” Henley v. Dillard Department Stores, 46 F. Supp. 2d 587 (1999).

So, in quick summary, three elements are needed to recover for the tort of Misappropriation of Name and Likeness in Texas:

(a) defendant appropriated the plaintiff’s name/likeness for the value associated with it, and not in an incidental manner or for a newsworthy purpose 

(b) the plaintiff can be identified from the publication, and 

(c) there was some advantage or benefit to the defendant.

If an individual or business enterprise has misappropriated your identity for commercial gain, let’s bring them to justice.

Setterberg Law Office